FusePump End User Licence Agreement
1. THIS END USER LICENCE AGREEMENT
1.1 This End User Licence Agreement (“Licence”) is a legal agreement between: FusePump Affiliates Limited (a company registered in England under number 6905043 and having its registered office at NO 2 WAREHOUSE THE WHARF, SOWERBY BRIDGE, WEST YORKSHIRE, UNITED KINGDOM HX6 2AG and VAT registration number 115 1418 54) (“Licensor”, “we”, “us”, “our” or “FusePump”); and “you” or “your” or the “Licensee”, which is the person operating a website (the “LicenseeWebsite”) for the purpose of receiving commission from affiliate networks for posting certain data on that Licensee Website (the “Purpose”) and who seeks to obtain the use of or access certain data (the “Data”) or software (the “Software”) from us for the Purpose. Together, the Data and the Software are referred to in this Licence as the “Licensed Materials”.
1.2 BY CLICKING “I AGREE” TO THE END USER LICENCE AGREEMENT THROUGH OUR WEBSITE AT www.fusepumpaffiliates.co.uk (the “Licensor Website”), OR BY ACCESSING OR USING THE DATA OR THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENCE AGREEMENT (the “Licence”). IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE DO NOT AGREE TO LICENSE THE LICENSED MATERIALS TO YOU AND YOU MUST IMMEDIATELY CEASE ALL USE OF THE LICENSED MATERIALS.
1.3 In this Licence:
1.3.1 references to Clauses are to the clauses of this Licence;
1.3.2 words importing a gender shall include the other gender and the neutral;
1.3.3 references to persons and entities include individuals, bodies corporate, firms, partnerships or unincorporated associations;
1.3.4 the singular includes the plural and vice versa;
1.3.5 the headings are inserted for convenience only and shall not affect the interpretation or construction of this Licence;
1.3.6 references to "includes" or "including" or like words or expressions shall mean without limitation;
1.3.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.3.8 references to "written" or in "writing" includes in electronic form.
1.4 We reserve the right to change this Licence at any time. All changes to this Licence will be posted in the latest Licence online on the Licensor Website. We may introduce the changes with or without notice to you, although where we reasonably consider the changes to be significant, we shall endeavour to give at least 30 days’ warning of the changes. However, in any event, you are responsible for regularly reviewing information posted online and the latest Licence to obtain timely notice of all changes. You may terminate this Licence and cease using the Licensor Website if you do not wish to be bound by the new or revised Licence. However, your continued use of the Licensed Materials or the Licensor Website will be deemed to constitute your acceptance of the new or revised Licence.
1.5 This Licence was most recently updated on 16th July 2010.
1.6 We shall keep a copy of this Licence, but you are advised to print and keep a copy of this Licence and each amended version for your own records and future reference.
1.7 If you have any comments, queries or suggestions about the Licensed Materials or the Website, you can email us at enquiries@fusepump.com.
2. REGISTRATION FOR USE OF THE LICENSED MATERIALS
2.1 Please note that you need to register to become a licensee and to have the right to use or access the Licensed Materials.
2.2 If we accept you registration for the Licensed Materials, it enables you to use them for the Purpose, strictly in accordance with the terms of this Licence (as amended).
2.3 You must not choose a password that can be readily guessed. If you think that you may have allowed a third party to see or use your password other than with your permission, you must inform us immediately and we will suspend use of the Licensed Materials under that password (but in any event you shall be responsible for any use under that password until we do so). You agree to regularly change your password and in any event when we require.
2.4 You must keep your password strictly confidential and secure and immediately notify us if any unauthorised third party becomes aware of that password or if you become aware of any unauthorised use of your email address or password or there is any breach of security known to or suspected by you. You agree that any person to whom your username or password is disclosed is authorised to act as your agent for the purposes of using or accessing the Licensed Materials and Licensor Website. Please note that you are entirely responsible if you do not maintain the confidentiality of your password. You are also entirely responsible for bringing this Licence to the attention of all persons who may access the Licensed Materials through your password or your Internet connection.
2.5 When you become a Licensee and have a right to access or use the Licensed Materials, you shall use or access such part of the Licensed Materials strictly as we permit you to do and in the ways we permit you to do.
2.6 We reserve the right to prohibit you from using the Licensor Website or the Licensed Materials (or any part of them) and we reserve the right to decline a new registration, and we or you may also terminate your registration or use or access at any time.
3. PROVISION AND USE OF THE LICENSED MATERIALS AND LICENSOR WEBSITE
3.1 Our provision and your use of the Licensed Materials and/or the Licensor Website are subject to this Licence.
Grant and Scope of Licence
3.2 You acknowledge that as between you and us, all intellectual property rights of any nature anywhere in the world (including all copyright, database rights, patents, trade marks, service marks, trade names, designs (including the "look and feel" and other visual or non-literal elements), whether registered or unregistered) in the Licensor Website and Licensed Materials (including all data and trade marks, service marks, names, logos and devices), information and content and material on or accessible from the Licensor Website, any database operated by us, software on the Licensor Website and all the Licensor Website design, text and graphics, and their selection and arrangement, and all software compilations, underlying source code and software (including applets and scripts) shall remain our property (or that of our licensors). You shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights not expressly granted by us are reserved. You acknowledge that the rights in the Licensed Materials are licensed and not sold to you, and the only rights that you have in relation to the Licensed Materials are as set out in this Licence.
3.3 In consideration of you agreeing to comply with the terms of this Licence, we hereby give to you a licence to use the Licensed Materials on the terms of this Licence.
3.4 The Licence extends to any patches, updates, upgrades and new releases of the Licensed Materials if and to the extent permitted or provided from time to time.
3.5 You may extract and save to and use on the Licensee Website the Data in the form provided by us through the Licensor Website.
3.6 Unless otherwise agreed by us, your right to access and use the Software is only as a hosted service through the Licensor Website and you shall have no rights to download, copy or reproduce it.
3.7 The Licence is a non-exclusive, non-transferable and non-sublicensable right and licence to use the Licensed Materials on the terms and conditions of this Licence and subject to such other conditions as we may stipulate from time to time.
3.8 The Licence is personal to you. You shall not permit any third party to use or have access to the Licensed Materials, except as expressly permitted by us in writing.
3.9 Except to the extent permitted by law or as otherwise expressly set out in this Licence, you shall have no right without our prior written consent to copy, reproduce, download, rent, lease, loan, modify, adapt, merge, reverse engineer, decompile, disassemble, translate or create derivative works of the Licensed Materials or use or access the source code to the Software in whole or in part.
3.10 We may contain tracking codes with the Licensed Materials in order to protect our intellectual property rights. You must not attempt in any way directly or indirectly to remove or circumvent such codes, nor authorise or encourage or agree with anyone else to do so.
3.11 You must not alter or modify the Licensed Materials nor permit them to be combined with any other software or data, except to the extent envisaged by us for the Purpose.
3.12 You may use the Licensed Materials only for publishing data on your publicly accessible website in a true, fair, lawful, complete and accurate (and not misleading, misrepresenting or inaccurate) manner and in compliance with all applicable laws, regulations, bye-laws and codes of practice and without infringing any third party rights, all in the normal course of your business.
3.13 In any event, you must only use the Software or Data that we expressly agree to make available to you.
3.14 Except to the extent expressly permitted under this Licence or to the extent that we have given our prior written consent, you shall not allow any third party to access or use the Licensed Materials, and shall not provide or feed or allow or permit the extraction of the Licensed Materials to any other users or websites.
3.15 You agree to permit us and our licensors, agents, representatives, sub-contractors and employees at all reasonable times and on reasonable notice to enter such places and inspect such equipment under your or your agents’, employees’, contractors’ or customers' control to verify that you are complying with the terms of this Licence and that you and your agents, employees, contractors and customers are not infringing this Licence.
3.16 If we reasonably suspect that you are in breach of this Licence, we may disable access to any Licensed Materials at any time and without notice whether by use of code in the Licensed Materials, by remote access or by physical attendance at the places where the equipment is located.
General Rules
3.17 You agree not to cause any other user of the Licensor Website any loss or liability or interfere with another person's use of the Licensor Website or the Licensed Materials except to the extent that we expressly permit.
3.18 You agree not to circumvent the Licensed Materials or the process on the Licensor Website or obtain the Data other than through the Licensor Website.
3.19 When we provide the Data, we are dependent on the data provided to us or obtained by us from third party suppliers of that data. To the extent permitted by law, we do not warrant and we exclude all Liability in respect of the accuracy, completeness, currency, fitness for purpose or legality of any information accessed using the Licensor Website or Licensed Materials.
3.20 We will use our reasonable endeavours to correct any errors or omissions in the Licensed Materials or Licensor Website as soon as practicable after being notified of them. However, we do not guarantee that the Licensed Materials or the Licensor Website will be free of faults and we do not accept liability for any errors or omissions. In the event of a fault in the Licensed Materials or Licensor Website, you should report it by email to: support@fusepump.com.
3.21 If the Licensor Website or Licensed Materials are accessed or used by you from outside the United Kingdom, this is entirely at your risk. We make no representation that the Licensed Materials or Licensor Website are available or otherwise suitable for use outside of the United Kingdom. If you choose to access or use the Licensor Website or Licensed Materials from or in locations outside the United Kingdom, you do so on your own initiative and are responsible for:
3.21.1 ensuring that what you are doing in that country is legal; and
3.21.2 the consequences and compliance by you with all applicable laws, regulations, byelaws, codes of practice, licences, registrations, permits and authorisations (including any laws that relate to businesses providing services).
3.22 We do not warrant that your use of the Licensed Materials or the Licensor Website will be uninterrupted and we do not warrant that any information transmitted from or via the Licensed Website will be transmitted accurately, reliably, in a timely manner or at all.
3.23 We do not give any warranty that the Licensed Materials or the Licensor Website is free from viruses or anything else which may have a harmful effect on any technology. We shall not have any Liability for damage to, or viruses or other code that may affect, any computer equipment, software, data or other property as a result of your access to or use of the Licensor Website or Licensed Materials or your obtaining any material from, or as a result of using, the Licensor Website or Licensed Materials. We shall also not have any Liability for the actions of third parties in breaching any security measures.
3.24 Also, access to and use of the Licensed Materials and the Licensor Website may be suspended, restricted or terminated at any time for any reason (including for necessary maintenance or introduction of new functionality or content).
3.25 You agree to comply at all times with any instructions for use of the Licensed Materials in this Licence or which we display on the Licensor Website from time to time.
3.26 Nothing on the Licensor Website shall constitute advice specific to your circumstances or a recommendation.
3.27 We assume no responsibility for the content or services of any other websites or services to or from which the Licensor Website or the Licensed Materials has links. The links are provided "as is" with no warranty, express or implied, for the information provided within those sites.
3.28 No one is entitled to frame any of the Licensor Website onto another website without our prior written consent (which may be withheld in our absolute discretion).
3.29 We hereby grant to you a revocable, non-exclusive, royalty-free right to provide a link from your website to the home page of the Licensor Website, provided that you do so in a fair and legal way without damaging our reputation or taking advantage of it. In particular:
3.29.1 you shall not make any warranties or representations about us, our Licensed Materials, our data, our software or our policies except with our prior express authorisation;
3.29.2 you shall not say anything that is unfair, false, misleading, a misrepresentation, derogatory or offensive about us or the content of the Licensor Website, our Licensed Materials or our policies; and
3.29.3 you shall not suggest expressly or implicitly that we have endorsed or approved you, your service or your site or are associated with it where this is not the case.
3.30 The following uses of the Licensed Materials (and Licensee Website) are expressly prohibited and you undertake not to do (or to permit or encourage or entice or induce anyone else to do), directly or indirectly, any of the following:
3.30.1 send or receive any material which is grossly offensive, harassing, threatening, malicious, abusive, of an indecent, obscene, pornographic or menacing character, vulgar, blasphemous or defamatory of any person, in contempt of court or in breach of confidence, or which may infringe any intellectual property rights (including copyright), rights of personality, publicity or privacy or any third party rights of any nature;
3.30.2 do anything that unfairly takes advantage of or exploits anyone under the age of 18 or anyone who is not in a fit and proper state to be able to look after their own best interests, nor seek to enter into a contract or agreement with any such person;
3.30.3 cause annoyance, inconvenience or needless anxiety;
3.30.4 intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
3.30.5 use or provide or present the Licensee Website or Licensed Materials in any way which breaches any laws, regulations, byelaws, codes of practice, licences, registrations, permits or authorisations;
3.30.6 use or provide or present the Licensee Website or Licensed Materials for any fraudulent, criminal or unlawful purpose or for inciting, encouraging or enticing any fraudulent, criminal or unlawful purpose;
3.30.7 impersonate any other person or body or misrepresent a relationship (or a lack of a relationship or a different relationship) with or between any person or body;
3.30.8 do anything other than in conformance with accepted Internet practices and practices of any connected networks;
3.30.9 act in a racist, sexist or discriminatory way;
3.30.10 do anything in any way which may incite hatred against any ethnic, religious or any other minority or is otherwise calculated to adversely affect any individual, group or entity;
3.30.11 do anything in a way that we consider may be contrary to our or our suppliers’ or licensors’ interests;
3.30.12 resell or supply the Licensed Materials without our prior written consent;
3.30.13 attempt to circumvent our systems (including accessing data or software not intended for you or using Licensed Materials without our tracking codes), log into a server or account you are not expressly authorised to access, or probe the security of other networks (such as running a port scan);
3.30.14 use, deliver or transmit any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
3.30.15 access the Licensed Materials (or Licensor Website) in such a way as to, or commit any act that would or does, impose an unreasonable or disproportionately large load on our infrastructure;
3.30.16 interfere or attempt to interfere with the proper working of the Licensor Website or Licensed Materials; or
3.30.17 execute any form of network monitoring which will intercept data not intended for you.
3.31 We do not warrant that the Licensed Materials and Licensor Website will be compatible with all hardware and software which you may use.
4. YOUR RESPONSIBILITIES
4.1 You are responsible for ensuring that the Licensee Website conforms with any technical guidelines and compatibility requirements issued by us from time to time for its users and their websites and data, to enable you to access, use, extract and obtain the Data and access and use the Software.
4.2 You are responsible for ensuring that the Licensed Materials are sufficient and suitable for your purpose. The Licensed Materials and Licensor Website are being provided to you without charge. Accordingly, to the fullest extent possible by law, the Licensed Materials and Licensor Website are provided to you "as is", and all conditions, warranties, terms and obligations other than in this Licence whether express or implied by statute, common law or otherwise are excluded.
4.3 This Licence is entirely separate from any contracts that you may have with any affiliate networks or any other third parties and any rights or obligations of you or the affiliate networks or third parties under those contracts or relationships, over which we have no control and for which we are not responsible. This includes you being entirely responsible for obtaining and collecting any revenues from any affiliate networks or third parties with whom you have a revenue share or payment relationship. We shall not have any Liability for any act or omission of any affiliate network or any third party.
5. INDEMNITY
5.1 You shall fully and promptly indemnify and keep indemnified us against all liabilities, losses, damages, injuries, costs, expenses, fines, demands, claims and proceedings suffered or incurred by us arising (directly or indirectly) out of:
5.1.1 any breach of this Licence by you; or
5.1.2 any claims or legal proceedings arising from your use of the Licensed Materials or Licensor Website or use of the Licensed Materials or Licensor Website through your password, which are brought or threatened against us by any person; or
5.1.3 any liability owed by us to our licensor or suppliers as a result (directly or indirectly) of the extraction, access or use by you of the Licensed Materials.
6. LIMITATION OF LIABILITY
6.1 This Clause 6 prevails over all other Clauses and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
6.1.1 the performance, non-performance, purported performance or delay in performance of this Licence or the Licensed Materials or Licensor Website (or any part of it or them); or
6.1.2 otherwise in relation to this Licence or the entering into or performance of this Licence.
6.2 Nothing in this Licence shall exclude or limit our Liability for (i) the tort of deceit; (ii) death or personal injury caused by our Breach of Duty; (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982; or (iv) any other Liability which cannot be excluded or limited by applicable law.
6.3 In performing any obligation under this Licence, our only duty is to exercise reasonable care and skill.
6.4 We do not warrant and we exclude all Liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Licensed Materials or Licensor Website; and we exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature.
6.5 Save as provided in Clause 6.2 but subject to Clause 6.6, we do not accept and hereby exclude any Liability for loss of or damage to your (or any person’s) tangible property other than that caused by our Breach of Duty.
6.6 Save as provided in Clause 6.2 but subject to Clauses 6.5 and 6.8, our Liability for loss of or damage to your (or another person’s) tangible property caused by us, our employees, subcontractors or agents acting within the course of their employment during the performance of this Licence, shall not exceed 10. Neither corruption of data nor loss of data shall constitute physical damage to property for the purposes of this Clause 6.6.
6.7 Save as provided in Clauses 6.2 and 6.5, we do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the terms of this Licence.
6.8 Save as provided in Clause 6.2, we shall have no Liability for:
6.8.1 loss of revenue;
6.8.2 loss of actual or anticipated profits;
6.8.3 loss of contracts;
6.8.4 loss of the use of money;
6.8.5 loss of anticipated savings;
6.8.6 loss of business;
6.8.7 loss of operation time;
6.8.8 loss of opportunity;
6.8.9 loss of goodwill;
6.8.10 loss of reputation;
6.8.11 loss of, damage to or corruption of data; or
6.8.12 any indirect or consequential loss;
and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, Clauses 6.8.1 to 6.8.11 apply whether such losses are direct, indirect, consequential or otherwise.
6.9 Save as provided in Clause 6.2, our total Liability to you or any third party shall in no circumstances exceed, in aggregate, a sum equal to the greater of: a) 100; or b) 200% of any aggregate amount paid by you to us in the 12 months preceding any cause of action arising.
6.10 The limitation of Liability under Clause 6.9 has effect in relation both to any Liability expressly provided for under this Licence and to any Liability arising by reason of the invalidity or unenforceability of any term of this Licence.
6.11 In this Licence:
6.11.1 “Liability”means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Licence, including, without limitation, liability expressly provided for under this Licence or arising by reason of the invalidity or unenforceability of any term of this Licence (and for the purposes of this definition, all references to “this Licence” shall be deemed to include any collateral contract); and
6.11.2 “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
7. TERM, SUSPENSION AND TERMINATION
7.1 Unless terminated earlier pursuant to this Licence, this Licence shall terminate upon the earlier of expiry or termination of your right to use the Licensed Materials.
7.2 Without prejudice to our other rights and remedies, we may terminate this Licence immediately if:
7.2.1 you are in material breach of any of your obligations under this Licence or any other agreement between you and us; or
7.2.2 you are in persistent breach of any of your obligations under this Licence or any other agreement between you and us; or
7.2.3 you give notice to any of your creditors that you have suspended or are about to suspend payment, or an order is made or a resolution is passed for your winding-up or an administration order is made or an administrator is appointed to manage your affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of your assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or you take or suffer any similar or analogous action in consequence of debt in any jurisdiction.
7.3 Termination of this Licence shall be without prejudice to any accrued rights or remedies.
7.4 Termination of this Licence will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
7.5 Upon termination of this Licence for any reason:
7.5.1 you shall cease all use of the Licensed Materials and Licensor Website; and
7.5.2 you shall promptly to delete or permanently erase all Licensed Materials from the Licensee Website and any computer disks, tapes or other material in your possession or under your control or promptly deliver up or destroy materials and tangible items in your possession or under your control which contain any such Licensed Materials.
7.6 We may also at any time (in whole or in part), without Liability, suspend the Licensed Materials and/or Licensor Website (in whole or in part), or use of or access to it.
7.7 If we suspend or terminate your use of the Licensed Materials and/or Licensor Website (in whole or in part), you shall not attempt to use or access the Licensed Materials and/or the Licensor Website directly or indirectly.
8. GENERAL
8.1 No partnership/agency: Nothing in this Licence shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
8.2 No other terms: Except as expressly stated in this Licence, all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
8.3 Assignment: You shall not assign or delegate or otherwise deal with all or any of your rights or obligations under this Licence without our prior written consent (which consent we may grant or withhold in our absolute discretion).
8.4 Force majeure: Neither party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Licence which is caused by an event beyond the control of that party, regardless of whether the circumstances in question could have been foreseen.
8.5 Entire Agreement: This Licence (and any other terms and conditions specifically agreed between you and us in writing) contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Licence except as expressly stated in this Licence. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Licence (unless such untrue statement was made fraudulently or was as to a matter fundamental to a party’s ability to perform this Licence) and that party’s only remedies shall be for breach of contract as provided in this Licence.
8.6 No waiver: Unless a party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either party in exercising any power, right or remedy under this Licence or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that party's other powers, rights or remedies under this Licence or at law.
8.7 Severability: If any provision of this Licence is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of this Licence shall not be affected.
8.8 No third party rights: Unless expressly provided in this Licence, no term of this Licence is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
8.9 Governing law: This Licence (and any non-contractual right or obligation arising out of or in relation to it) shall be governed by and construed in accordance with English law and you hereby submit to the jurisdiction of the English courts. Nothing in this Clause 8.9 shall limit our right to take proceedings against the Licensee in any other court of competent jurisdiction. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language.
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