ZERDALAB APP TERMS AND CONDITIONS
1.1 The definitions and rules of interpretation in this clause apply in this agreement
App: Zerdalab’s dullgrade app named “PDC Dull Grading”;
Authorised Users: those employees, agents and contractors of a corporate Customer who are authorised by the Customer to use the Services, as further described in clause 2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5.
Customer: the individual or corporate body that is subscribing to the Services in accordance with this agreement.
Customer Data: all data (in any form including photographic images)inputted by the Customer and/or the Customer’s Authorised Users, for the purpose of using the Services.
Data Protection Legislation: all applicable laws and regulations from time to time in force relating to the protection of personal information, including the Data Protection Act 2018, the General Data Protection Regulation (Regulation EU 2016/679) GDPR as transposed into UK law pursuant to the European Union (Withdrawal) Act 2018 (UK GDPR) and any laws substituting, re-enacting or replacing any of the forgoing, as amended or updated from time to time.
Initial Subscription Term: the duration of the initial paid subscription to the Services selected by the Customer when purchasing the Services, which shall commence on the date that the Customer is given access to the Services..
Outputs: the tangible reports, data, documents, materials, and/or other output information produced or generated by the Services utilising the Customer Data, but excluding the Service Analyses.
Services: Zerdalab’s “PDC Dull Grade” app captures PDC drill bit components, processes images using computer vision technology to identify the components, assesses the extent and type of damage on those components, combines the information from the computer vision models and manually entered bit record data by user into a comprehensive report, accessed via the App.
Software: the online software applications (including any machine learning and modelling techniques which form part of such applications) provided by Zerdalab as part of the Services including any enhancements, and modifications to the foregoing, as well as any related user guides, release notes, and all suggestions, ideas, enhancement requests, and feedback relating thereto.
Service Fees: means the fees for the Services, as shown to the Customer when purchasing the Services or as otherwise communicated by Zerdalab to the Customer.
VAT: United Kingdom value added tax and any analogous or replacement sales tax payable in respect of the Services from time to time.
User Account: each user account set up by or on behalf of the Customer, which entitles an Authorised User to access and use the Services in accordance with this agreement.
Virus: Any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Zerdalab: Zeralab Limited, (registered company number: 13566076) whose registered office address is at Saffery Champness LLP 4th Floor St Catherine’s Court, Berkeley Place, Clifton, Bristol, United Kingdom, BS8 1BQ.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to one gender shall include a reference to the other genders.
1.5 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time whether before or after the date of this Agreement and, in the case of a statute, includes any subordinate legislation made under that statute whether before or after the date of this Agreement.
1.6 A reference to writing or written includes faxes and e-mail.
1.7 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words “without limitation” following them.
1.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.9 References to clauses are to the clauses of this Agreement.
2.1 Subject to the Customer paying the Service Fees in accordance with clause 8.1, the restrictions set out in this clause 2.1 and the other terms and conditions of this agreement, Zerdalab hereby grants to the Customer a non-exclusive, non-transferable right to access and, where applicable, permit its Authorised Users to access the Services during the Subscription Term.
2.2 As the Customer subscribes to the Services via the App, it shall be required to set up a User Account. Where the person accepting this agreement is doing so:
(a) on behalf of themselves, he/she agrees that it shall create one User Account for its own purposes and no User Accounts may be created for or accessed by any other third parties;
(b) on behalf of a corporate Customer, that person hereby confirms that he/she has the requisite authority to bind the Customer to this agreement and that the Customer will be responsible for all use of the Services by its Authorised Users. If an individual ceases to work for the Customer, that individual’s User Account log-in must be changed or disabled so that it can no longer be accessed and used by that individual.
2.3 The Customer is responsible for the password security of all User Accounts opened by or for it and for its Authorised Users’ access to and use of the Services. In particular, in relation to the Authorised Users, the Customer undertakes that:
(a) it will not allow or suffer any User Account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(b) each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed at reasonable intervals and that each Authorised User shall keep his password confidential;
(d) if any of the audits referred to in clause 2.3(c)reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Zerdalab’s other rights, the Customer shall promptly disable such passwords and neither party shall issue any new passwords to any such individual.
2.4 The Customer shall not (and shall procure that its Authorised Users do not) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
2.5 Zerdalab reserves the right, without liability or prejudice to its other rights to the Customer, to remove and/or disable the Customer’s access to the Services if it or its Authorised Users breaches the provisions of this clause 2.
2.6 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Zerdalab.
3.1 Zerdalab shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
3.2 Zerdalab undertakes and agrees that it shall exercise commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, subject to maintenance as described in clause 3.3 and the other exclusions set out in this agreement.
3.3 The Customer acknowledges and agrees that the Services may be unavailable or subject to limited functionality during planned and unplanned maintenance. Zerdalab shall use its reasonable endeavours to give the Customer notice in advance of any maintenance.
4. ZERDALAB’S OBLIGATIONS AND WARRANTIES
4.1 Zerdalab warrants that:
(a) the Services shall be performed with reasonable skill and care, using suitably skilled and qualified personnel;
(b) the Services shall comply with all applicable laws and regulations;
(c) it shall not knowingly transmit or distribute any Virus via the Software; and
(d) it has and will maintain all necessary licences, consents, and permissions necessary for the provision of the Services (including the Software).
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
(c) is not responsible for any delays, service failures, or any other loss or damage resulting from the use by the Customer of any hardware assets (including the Authorised User’s mobile devices) or third party software not provided by Zerdalab or where the Customer Data, in Zerdalab’s reasonable opinion, is unreliable, inaccurate or lacking in quality, integrity or clarity.
4.3 The Customer acknowledges that the Service is a diagnostic tool and does not provide an exhaustive, conclusive assessment of any issue or of the Customer’s requirements. Zerdalab shall not be responsible for any conclusions or decisions that the Customer makes through its use of the Services and using information (including Outputs) obtained from the use of the Services.
4.4 This agreement shall not prevent Zerdalab from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5. CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide Zerdalab with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Zerdalab,
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement 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, Zerdalab may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Zerdalab, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Zerdalab from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Zerdalab’s 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.
6. CUSTOMER DATA AND OUTPUTS
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and Outputs and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. In particular, the Customer warrants that it has all requisite rights to exploit the Customer Data and permit Zerdalab to utilise the Customer Data as envisaged under this agreement. The Services shall not replicate, use or store any Customer design data.
6.2 The Customer grants Zerdalab a non-exclusive, royalty-free, transferable, sub-licenseable, perpetual, worldwide licence to use, adapt, modify, enhance or create derivative works from the Customer Data, as necessary or desirable for the purposes of providing the Services, Software and any other products or services Zerdalab may offer or provide to the Customer from time to time, as well as described in clause 6.3. Zerdalab shall not disclose or sell the Customer Data to any third parties other than for the purposes of providing the Services to the Customer and/or as otherwise expressly instructed to do so in writing by the Customer.
6.3 The Customer agrees that Zerdalab may aggregate the Customer Data with other data input by third parties or otherwise collected by Zerdalab (“Service Analyses”), subject to anonymising the Customer Data as incorporated in the Service Analyses to remove any and all references to the Customer so that the source of the data is not identifiable. Zerdalab may freely use such Service Analyses for its internal business purposes, including but not limited to statistical analysis, research and development, and product and service improvement, but agrees that it shall not sell, distribute or license such Service Analyses in raw form to any third party (unless otherwise expressly agreed by the Customer). Zerdalab shall own all Intellectual Property Rights in and to such Service Analyses.
6.4 The Customer shall defend, indemnify and hold harmless Zerdalab 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 whether directly or indirectly any action, demand, claim or proceeding that the use or possession of the Customer Data or (any part thereof) infringes or allegedly infringes the rights (including any Intellectual Property Rights) of any third party, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Zerdalab provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
6.5 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Zerdalab to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Zerdalab. Zerdalab 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 Zerdalab to perform services related to Customer Data maintenance and back-up) and the Customer should therefore keep its own back-ups of Customer Data.
7. DATA PROTECTION
7.1 For the purposes of this clause, the following defined terms shall apply – “Controller”, “Processor”, “Data Subject”, “Personal Data” and “Processing/process” and each shall have the meaning given in the Data Protection Legislation.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Service Fees to Zerdalab for the Services in accordance with this clause 8.
8.2 Unless expressly agreed, the Customer shall pay the Service Fees in advance by debit or credit card. Recurring payments shall be debited from the Customer’s credit card automatically unless otherwise agreed.
8.3 The Customer agrees to keep its payment details up to date. In the event that a payment fails, the Customer shall promptly make payment by either updating their credit card information within the brand index tool or via an alternative method.
8.4 Zerdalab may, in its sole discretion and subject to carrying out credit reference checks, agree to invoice for the Service Fees. The Customer shall pay invoices in full, without deduction or set-off, within 14 days of date of invoice in cleared funds to the bank account nominated on the face of Zerdalab’s invoice.
8.5 If Zerdalab has not received payment by the due date, and without prejudice to any other rights and remedies of Zerdalab:
(a) Zerdalab may, without liability to the Customer, disable the Customer’s passwords, accounts and access to all or part of the Services and Zerdalab shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Zerdalab’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.6 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of VAT, which shall be payable in addition at point of payment and, where relevant, added to Zerdalab’s invoice(s) at the appropriate rate.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that Zerdalab and/or its licensors own all intellectual property rights in and to the Services (including the Software). Except as expressly stated herein, this agreement does 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.
9.2 Zerdalab 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, the terms of this agreement.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body (for the purposes of that disclosure only).
10.2 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 this agreement.
10.3 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 this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Customer acknowledges that details of the Services, Service Analyses, and the results of any performance tests of the Services, constitute Zerdalab’s Confidential Information.
10.6 Zerdalab acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 This clause 10 shall survive termination of this agreement, however arising.
11.1 Zerdalab shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the commencement of the Initial Subscription Term, copyright, trade mark or database right, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Zerdalab is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Zerdalab in the defence and settlement of such claim, at Zerdalab’s expense;
(c) the Customer uses its best endeavours to mitigate its losses; and
(d) Zerdalab is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, Zerdalab 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 this agreement on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall Zerdalab, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Zerdalab; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by Zerdalab; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from Zerdalab or any appropriate authority.
11.4 The foregoing and clause 12.4(b) states the Customer’s sole and exclusive rights and remedies, and Zerdalab’s (including Zerdalab’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11.5 The Customer shall defend, indemnify and hold harmless Zerdalab 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:
(a) the Customer is given prompt notice of any such claim;
(b) Zerdalab provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12. LIMITATION OF LIABILITY
12.1 This clause 12 sets out the entire financial liability of Zerdalab (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 this agreement;
(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 this agreement.
12.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Zerdalab shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Zerdalab by the Customer in connection with the Services, or any actions taken by Zerdalab at the Customer’s direction; and
(b) 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 this agreement.
12.3 Nothing in this agreement excludes the liability of Zerdalab:
(a) for death or personal injury caused by Zerdalab’s negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) for any other liability which cannot be limited or excluded by applicable laws.
12.4 Subject to clause 12.2 and clause 12.3:
(a) Zerdalab 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 this agreement; and
(b) Zerdalab’s total aggregate liability in contract (including any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the higher of (i) an amount equal to the total Service Fees paid or payable during the 12 months immediately preceding the date on which the claim arose, or (ii) £1,000 (one thousand pounds).
13. TERM AND TERMINATION
13.1 Thisa agreement shall, unless otherwise terminated as provided in this clause 13, continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for further periods of the same length as the Initial Subscription Term (each a Renewal Period), unless either party gives the other not less than 30 days’ notice to terminate the agreement, such notice to expire at the end of the Initial Subscription Term or then current Renewal Period, and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
13.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party; and
(c) 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.
14.1 Zerdalab may modify this agreement at any time, such modifications becoming effective immediately upon posting changes on the App, in the User Account or on notification to the Customer. By continuing to use the Services following any such modification, the Customer will be deemed to accept such modification.
14.2 The Customer shall not transfer or assign this agreement or any part of it in whole or in part.
14.3 Zerdalab will not be liable if it cannot perform its obligations under this agreement because of circumstances beyond its reasonable control, including technical failure, severe weather, fire or explosion, civil disorder, war or military operations, natural or local emergency, anything done by government or other competent authority or industrial disputes of any kind.
14.4 Notices given under this agreement may be given by Zerdalab to the Customer online through the Services, by e-mail or in writing to the address as currently stated in the User Account.
14.5 The parties do not intend that any term of this agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this agreement.
14.6 This agreement is the entire and only agreement between the parties concerning its subject matter and supersedes any and all prior agreements, arrangements and understandings (whether written or oral) relating thereto. Neither party has relied upon any statement, representation or warranty of any person other than as expressly set out in this agreement but nothing in this agreement shall limit or exclude liability either party’s liability for fraud.
14.7 No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
14.8 If any provision of this agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
14.9 This agreement is governed by, and construed in accordance with, English Law the parties submit to the non-exclusive jurisdiction of the English courts as regards any claim or matter arising in relation to this agreement.