Terms & Conditions
Thesaurus Software Limited (trading as Bright Software Group) Software Subscription Terms and Conditions
These are the terms and conditions (Terms and Conditions) on which we, Thesaurus Software Limited (trading as Bright Software Group) ("Bright") supply our Subscription Services to you and for your access to, and use of, our website and our services, whether you are a guest or a registered user. Please read these Terms and Conditions carefully before you submit your order to Bright.
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply to these Terms and Conditions.
Authorised Users: those individuals who are authorised by you to use the Subscription Services as set out in your Registration process or as provided for in respect of any Trial Period.
Business Day: a day other than a Saturday, Sunday, or public holiday in Ireland when banks in Dublin are open for business.
Commencement Date: has the meaning given to it in clause 2.1.
Control: shall be as defined in section 11 of the Taxes Consolidation Act 1997 (as amended), and the expression change of Control shall be construed accordingly.
Client Portal: a portal through which Authorised Users can upload Customer Data.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.
Controller, processor, data subject, personal data, personal data breach, international organisation, processing, and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer Data: the data inputted by you, your Authorised Users, or Bright on your behalf for the purpose of using the Subscription Services or facilitating your use of the Subscription Services.
Data Protection Legislation: the Irish Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications), each as amended from time to time.
Enterprise Client: where you have purchased seven (7) or more User Subscriptions and where you have elected to become an Enterprise Client.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, and sanctions, which are applicable to either you or an Authorised User (but not to Bright ) relating to security of network and information systems and security breach and incident reporting requirements, which may include the NIS Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), and the European Union (Measures for a High Common Level of Security of Network and Information Systems) Regulations 2018 (SI 360/2018), all as amended or updated from time to time.
Initial Subscription Term: the applicable initial term for the provision of Subscription Services commencing on expiry of the Trial Period.
Monthly Subscriber: where you purchase Subscription Services on a monthly basis.
Normal Working Hours: 9am-5:30pm on Monday to Thursday and 9am-4:30pm on Friday (save for Irish public holidays).
Protected Data: Personal Data received from or on behalf of you or otherwise obtained in connection with the performance of Bright’s obligations under these Terms and Conditions.
Registration: the process by which you successfully register with Bright and create an account, enabling you to sign up to a Trial Period and purchase Subscription Services (or other services) from Bright, and the term Register shall be construed accordingly.
Renewal Period: the applicable renewal period described in clauses 3.5 and 3.6.
Subscription Services: the subscription services provided by Bright to you during the Trial Period and the Subscription Term under these Terms and Conditions via Bright’s website or the Client Portal or any other website notified to you by Bright from time to time.
Software: the online software applications provided by Bright to you as part of the Subscription Services.
Standard Customer Support Services: the provision of email and telephone support to be provided by Bright to you during the Subscription Term, as determined by Bright and communicated to you prior to the Initial Subscription Term.
Sub-Processor: any agent, sub-contractor or other third party engaged by Bright (or by any other Sub-Processor) for carrying out any processing of the Protected Data.
Subscription Fees: the subscription fees payable by you to Bright for the User Subscriptions as stated in the ‘Pricing’ section of Bright’s website (as updated from time to time) or as otherwise communicated to you in accordance with these Terms and Conditions.
Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.
Trial Period: a trial period of thirty (30) days during which you may use the Subscription Services free of charge subject to these Terms and Conditions, and the term Trial shall be construed accordingly.
Irish Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in Ireland including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; and the European Communities (Electronic Communications Networks and Services) Regulations 2011 (SI 336/2011), each as amended from time to time.
User Subscriptions: your guest subscription which allows access to and use of the services during any Trial Period and the user subscriptions purchased by you pursuant to clause 11.1 which entitle Authorised Users to access and use the Subscription Services in accordance with these Terms and Conditions.
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 program 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.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 A person includes an individual, corporate, or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms and Conditions.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Terms and Conditions under that statute or statutory provision.
1.5 A reference to writing or something being written includes e-mail.
2. Basis of Contract and Registration
2.1 Your registration shall only be deemed accepted by Bright when Bright sends you confirmation of your Registration by email which will enable you and your Authorised Users to access the Subscription Services, at which point and on which date these Terms and Conditions shall apply (“Commencement Date”).
2.2 These Terms and Conditions shall apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. We may amend these Terms and Conditions from time to time and will inform you of any proposed material changes prior to their implementation.
2.3 Any discounts given by Bright shall only be valid up to twelve (12) months and are only available to new customers. Where you cancel a subscription during the discounted period, or convert to a monthly or annual subscription during an offer period, the discount shall only apply until such cancellation or conversion date and no further discount shall be available to you.
2.4 To be able to use the Subscription Services, you must have successfully completed the Registration process. If you have not done so already, please click https://www.accountancymanager.ie/signup to Register.
2.5 You warrant and undertake to provide accurate, up to date and complete information during the Registration process. If there are any changes to your information, you must promptly notify us in writing.
3. Trial Period and Subscription Term
3.1 You may use the Subscription Services for the Trial Period pursuant to these Terms and Conditions.
3.2 You are only permitted to one (1) free Trial of the Subscription Services. Bright may terminate your account if you breach, or attempt to breach this clause 3.2.
3.3 A Trial Period shall only be available upon receipt of a valid business email address or official documentation confirming the user’s status as a practising accountant/bookkeeper within Ireland and which must be provided upon Registration, including registered Irish address and phone number.
3.4 A Trial Period may be extended at Bright’s sole discretion and in accordance with the provisions of this clause 3.
3.5 In the event you are a Monthly Subscriber, and subject to receipt of the relevant Subscription Fees, your Initial Subscription Term shall continue for one (1) month following expiry of the Trial Period, and shall continue to renew at monthly intervals unless otherwise terminated in accordance with clause 16.
3.6 In the event you are an Enterprise Client or where you have chosen to pay annually, and subject to receipt of the relevant Subscription Fees, your Initial Subscription Term shall continue for twelve (12) months following expiry of the Trial Period, and shall continue to renew every twelve (12) months unless otherwise terminated in accordance with clause 16.
4. User subscriptions
4.1 For the duration of any Trial Period and where you are purchasing the User Subscriptions in accordance with clauses 5.3 and 11.1 and subject to you complying with the restrictions set out in this clause 4 and the other provisions as set out in these Terms and Conditions, Bright hereby grants to you a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Subscription Services during the Subscription Term solely for your internal business operations.
4.2 In relation to the Authorised Users, you undertake that:
(a) the maximum number of Authorised Users that you authorise to access and use the Subscription Services shall not exceed the number of User Subscriptions you have purchased from time to time;
(b) you will not allow or suffer any User Subscription 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 Subscription Services;
(c) each Authorised User shall keep a secure password for his use of the Subscription Services and each Authorised User shall keep his password confidential;
(d) you shall maintain a written, up to date list of current Authorised Users and provide such list to Bright within five (5) Business Days of Bright’s written request at any time or times;
(e) you shall permit Bright or Bright’s designated auditor to audit your use of the Subscription Services in order to establish the name and password of each Authorised User and your data processing facilities to audit compliance with these Terms and Conditions. Each such audit may be conducted no more than once per quarter, at Bright’s expense;
(f) if any of the audits referred to in clause 4.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Bright’s other rights, you shall immediately disable such passwords and Bright shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in clause 4.2(e) reveal that you have underpaid Subscription Fees to Bright, then without prejudice to Bright’s other rights, you shall pay to Bright an amount equal to such underpayment as calculated in accordance with the prices in force as at the date of your order within seven (7) Business Days of the date of the relevant audit.
4.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Subscription 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 age, race (including colour, nationality, ethnic or national origin), gender, religious belief, sexual orientation, disability, civil or family status, or membership of the Traveller community; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Bright reserves the right, without liability or prejudice to its other rights and remedies, to disable your access to any material that breaches the provisions of this clause.
4.4 You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms and Conditions:
(a) 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
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Subscription Services in order to build a product or service which competes with the Subscription Services; or
(d) use the Subscription Services to provide Subscription Services to third parties; or
(e) subject to clause 18.10, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party except the Authorised Users, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under this clause 4; or
(g) introduce or permit the introduction of, any Virus or Vulnerability into Bright’s network and information systems.
4.5 You warrant and undertake to prevent any unauthorised access to, or use of, the Subscription Services and, in the event of any such unauthorised access or use, to immediately notify Bright.
4.6 The rights provided under this clause 4 are granted to you only, and shall not be considered granted to any subsidiary or holding company of you.
5. Additional user subscriptions
5.1 Subject to the remainder of this clause, you may, from time to time during any Subscription Term, purchase additional User Subscriptions. Access to the Subscription Services shall be available to such additional Authorised Users in accordance with the provisions of these Terms and Conditions.
5.2 Where you are a Monthly Subscriber and you wish to purchase additional User Subscriptions resulting in a total number of User Subscriptions exceeding the Monthly Subscriber limit, you may elect to become an Enterprise Client and subject to an annual subscription.
5.3 Your request to purchase additional User Subscriptions will be approved automatically and you will pay to Bright the relevant fees for such additional User Subscriptions. If such additional User Subscriptions are purchased by you part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Bright for the remainder of the Initial Subscription Term or the current Renewal Period (as applicable).
6. Subscription Services
6.1 Bright shall, during the Subscription Term, provide the Subscription Services to you subject to these Terms and Conditions.
6.2 Bright shall use reasonable endeavours to make the Subscription Services available to you. You acknowledge that (i) Bright does not guarantee that the Subscription Services will always be available or uninterrupted; and (ii) Bright shall not be liable to you if the Subscription Services are unavailable at any time for any period. Bright shall use reasonable endeavours to perform any bug fixes or new releases of the Software outside of Normal Working Hours.
6.3 Bright shall during the Subscription Term provide you with Bright’s Standard Customer Support Services during Normal Working Hours.
6.4 Where you require any additional support services, such support services may be subject to an additional charge, to be determined at Bright’s sole discretion, and which will be communicated to you at the point of request. The payment details provided to us in accordance with clause 11 will be debited before commencement of the additional support services.
7. Customer data
7.1 You are the data Controller and Bright is the data Processor for the purposes of the processing of Protected Data. Bright shall process Protected Data in accordance with this clause 7 of these Terms and Conditions.
7.2 You shall at all times comply with the Data Protection Legislation in connection with the processing of Protected Data. You confirm that you are entitled to transfer the Protected Data to Bright and any Sub-Processor in compliance with the Data Protection Legislation and shall ensure all instructions given by you to Bright in respect of Protected Data shall at all times be in accordance with the Data Protection Legislation.
7.3.1 Bright shall only process (and shall ensure Bright personnel only process) the Protected Data in accordance with these Terms and Conditions (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and in such a case Bright shall inform you of that legal requirement before processing, unless such applicable law prohibits Bright from so notifying you).
7.3.2 If Bright believes that any instructions received from you are likely to infringe the Data Protection Legislation, it shall inform you and be entitled to cease to provide the Subscription Services until the parties have agreed appropriate amended instructions which are not infringing.
7.4.1. In accordance with the Irish Data Protection Legislation, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, Bright shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(a) to (d) of the GDPR.
7.5 Sub-processing and Personnel
7.5.1 Bright shall:
(a) not permit any processing of Protected Data by any Sub-Processor or other third party (except its personnel) without your written authorisation;
(b) appoint each Sub-Processor under a written contract containing materially the same obligations as in these Terms and Conditions in respect of Protected Data;
(c) remain liable to you under these Terms and Conditions for all the acts and omissions of each Sub-Processor and each of its/their personnel as if they were its own; and
(d) ensure that all persons authorised by Bright or any Sub-Processor to process Protected Data are subject to a written contractual obligation to keep the Protected Data confidential.
7.6.1 Bright shall (at your cost):
(a) assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under Data Protection Legislation) taking into account the nature of the processing and information available to Bright;
(b) taking into account the nature of the processing, assist you (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of your obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Legislation) in respect of any Protected Data; and
(c) refer all requests and communications received from Data Subjects or any supervisory authority to you which relate to any Protected Data promptly (and in any event within three (3) days of receipt) and shall not respond to any without your written approval and in accordance with your instructions unless and to the extent required by law.
7.7 International Transfers
7.7.1 Bright does not process and/or transfer, or otherwise directly or indirectly disclose any Protected Data in or to countries outside the European Economic Area or the United Kingdom. If we do so in the future, we will ensure that any such transfers comply with applicable Data Protection Legislation.
7.8 Records and Audit
7.8.1 Bright shall (at your cost), in accordance with Data Protection Legislation, make available to you such information that is in its possession or control as is necessary to demonstrate Bright’s compliance with its obligations under these Terms and Conditions. Bright shall permit audits by you (or another auditor appointed by you, provided such auditor has entered into a confidentiality undertaking with, and in terms reasonably acceptable to, Bright and such auditor is not a competitor of Bright) for this purpose, subject to a maximum of one audit in any 12 month period and at a time to be mutually agreed.
7.9.1 Bright shall notify you without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Personal Data.
7.10.1 Bright shall, at your written request, delete or return the Protected Data and any copies to you within 30 days of termination or expiry of your subscription unless we are required by applicable law to store the Protected Data.
7.11 Data Processing Details
7.11.1 Processing of the Protected Data by Bright under these Terms and Conditions shall be for the subject-matter, duration, nature, and purposes and involve the types of personal data and categories of Data Subjects as set out below:
1. Subject Matter of Processing
Bright will process Protected Data in order to perform its obligations under these Terms and Conditions.
2. Duration of the Processing
Bright will process the Protected Data for the term of the Subscription Services (and any exit period) and thereafter as long as Bright is required to process any Protected Data pursuant to applicable law.
3. Nature and Purpose of the Processing
The nature and purpose of the processing of the Protected Data will be to perform its obligations under these Terms and Conditions.
4. Types of Personal Data
The types of Protected Data will be as follows:
- Full Name
- Date of Birth
- Deceased Date
- Postal Address
- Marital Status
- National Insurance Number
- Email Address
- Telephone Number
- Mobile Number
- Social Media Profiles
- Business contact details
5. Categories of Data Subjects
- Business Contacts
- End Users
6. Specific Processing Instructions
Core to Bright is the ability to store your clients’ data to be used by Authorised Users of your practice. Appropriately trained Bright support staff, when authorised by you, can gain access to this data for the purpose of providing technical support subject to appropriate safeguards.
7.12 You shall own all right, title, and interest in and to all Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all such Customer Data.
8. Third party providers
The Subscription Services may enable you to access third party websites and purchase products and other services from third parties via such third-party websites. You acknowledge that you may do so at your own risk. Bright makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transactions completed via any third-party website is between you and the relevant third party, and not Bright.
9. Bright’s obligations
9.1 Bright shall use reasonable endeavours to ensure the Subscription Services will be performed with reasonable care and skill.
9.2 Clause 9.1 shall not apply to the extent of any non-conformance which is caused by your use of the Subscription Services and is contrary to Bright’s instructions, or modification or alteration of the Subscription Services by any party other than Bright or Bright’s duly authorised contractors or agents.
9.3 Bright does not warrant that (i) your use of the Subscription Services will be uninterrupted or error-free; (ii) the Subscription Services, and/or the information obtained by you through the Subscription Services will meet your requirements; (iii) the Subscription Services will be free from Vulnerabilities; or (iv) the Subscription Services will comply with any Heightened Cybersecurity Requirements.
9.4 Bright 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 you acknowledge that the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
9.5 Bright may enter into similar agreements with third parties and independently develop, use, sell or licence documentation, products and/or Subscription Services which are similar to those provided under these Terms and Conditions.
9.6 Bright warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and Conditions.
10. Your obligationsYou shall:
(a) provide Bright with:
(i) all necessary co-operation in relation to these Terms and Conditions; and
(ii) all necessary access to such information as may be required by Bright;
in order to provide the Subscription Services, including but not limited to Customer Data, security access information and information to configure the Subscription Services;
(b) without affecting your other obligations under these Terms and Conditions, comply with all applicable laws and regulations with respect to your activities under these Terms and Conditions;
(c) carry out all of your other 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, Bright may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Subscription Services in accordance with the provisions of these Terms and Conditions and shall be responsible for any Authorised User's breach of these Terms and Conditions;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Bright, your contractors and agents to perform their obligations under these Terms and Conditions, including without limitation the Subscription Services;
(f) ensure that network and systems comply with the relevant specifications provided by Bright from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in these Terms and Conditions, solely responsible for procuring, maintaining, and \ securing your network connections and telecommunications links from your systems to Bright’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
11. Charges and payment
11.1 You shall pay the Subscription Fees to Bright for the User Subscriptions in accordance with this clause 11. The Subscription Fees are payable:
(a) monthly in advance by you if you are a Monthly Subscriber; or
(b) annually in advance by you if you are an Enterprise Client or where you have elected to pay annually.
11.2 You shall make payment for the Subscription Fees via credit or debit card or by bank transfer. You warrant and undertake that the credit or debit card (i) is registered in your name and address and contain sufficient credit facilities or funds to cover the Subscription Fee; and (ii) shall not expire during the Subscription Term.
11.3 Where a payment is made by bank transfer for a sum of €1,000 or above, an additional administrative fee of €15 will be payable by you.
11.4 Your account will be blocked if your payment is declined, three (3) or more times in three consecutive days from the date payment is due or where you provide incorrect credit or debit card details.
11.5 Prior to expiry of the Trial Period or to any subsequent extension of a Trial Period in accordance with clause 3.4, you shall provide to Bright valid, up-to-date, and complete credit or debit card details and any other relevant valid, up-to-date, and complete contact and billing details.
11.6 When you provide your credit or debit card details to Bright, you authorise Bright to immediately bill such credit or debit card for the Subscription Fees payable in respect of the Initial Subscription Term and any subsequent Renewal Period until the Subscription Term is terminated in accordance with clause 16.
11.7 Additional services to be provided by Bright shall only be delivered following receipt of payment and in accordance with the provisions of this clause 11.
11.8 If your payment is not recoverable under this clause 11, the provisions of clause 16 shall apply.
11.9 All amounts and fees stated or referred to in these Terms and Conditions and on Bright’s website at https://www.accountancymanager.ie (i) shall be payable in euro; (ii) are non-cancellable and non-refundable (unless otherwise agreed in writing with Bright); and (iii) are exclusive of value added tax, which shall be added to Bright’s invoice(s) at the appropriate rate.
11.10 Bright shall be entitled to increase the Subscription Fees and any fees payable in respect of the additional User Subscriptions purchased pursuant to clause 5.3 on giving thirty (30) days' notice. Such increase shall be payable in accordance with clause 11 above.
12. Proprietary rights
12.1 You acknowledge and agree that Bright and/or its licensors own all intellectual property rights in the Subscription Services. Except as expressly stated herein, these Terms and Conditions do not grant you any rights to, under or in any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Subscription Services.
13.1 Neither party shall during the Subscription Term, and for a period of two (2) years after termination of these Terms and Conditions, disclose to any person any Confidential Information concerning the business, affairs, customers, clients, or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party's obligations under these Terms and Conditions. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party's Confidential Information comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under these Terms and Conditions.
14.1 You shall defend, indemnify, and hold harmless Bright 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 your use of the Subscription Services.
15. Limitation of liability
15.1 Except as expressly and specifically provided in these Terms and Conditions:
(a) you assume sole responsibility for results obtained from your use of the Subscription Services, and for conclusions drawn from such use. Bright shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Bright by you in connection with the Subscription Services, or any actions taken by Bright at your direction;
(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 these Terms and Conditions; and
(c) the Subscription Services are provided to you on an "as is" basis.
15.2 Nothing in these Terms and Conditions excludes the liability of either party:
(a) for death or personal injury caused by the other party’s negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) for wilful misconduct.
15.3 Subject to clause 15.1 and clause 15.2:
(a) Bright shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect, or consequential loss, costs, damages, charges, or expenses however arising under these Terms and Conditions; and
(b) Bright’s 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 total Subscription Fees paid or payable for the User Subscriptions by you during the 12 months immediately preceding the date on which the claim arose.
16. Term and Termination
16.1 These Terms and Conditions shall, unless otherwise terminated as provided in this clause 16, commence on the Commencement Date and shall continue for the Initial Subscription Term and any subsequent Renewal Period unless:
(a) in the case of Enterprise Clients or where you have elected to pay annually, you notify us at least one month before the end of the Initial Subscription Term or any Renewal Period, in which case these Terms and Conditions shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period;
(b) in the case of Monthly Subscribers, you are required to notify us at least one month before the end of the Initial Subscription Term following which we shall terminate your account after the next billing date; or
(c) otherwise terminated in accordance with the provisions of these Terms and Conditions.
16.2 Without affecting any other right or remedy available to us, we may terminate these Terms and Conditions with immediate effect by giving written notice to you if:
(a) You commit a material breach of any term of these Terms and Conditions and (if such a breach is remediable) fail to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) you take any step or action in connection with entering bankruptcy, administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), you are being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) you suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of the business; or
(d) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under these Terms and Conditions has been placed in jeopardy.
16.3 Without affecting any other right or remedy available to it, Bright may at its discretion, terminate these Terms and Conditions with immediate effect by giving written notice to you if:
(a) you fail to pay any amount due under these Terms and Conditions on the due date for payment;
(b) become subject to any of the events listed in clause 16.3(b) to clause 16.3(d) or Bright reasonably believes that your business is about to become subject to any of them;
(c) you are a competitor of Bright;
(d) there is a change of Control to your business.
16.4 On termination of these Terms and Conditions for any reason:
(a) all licences granted under these Terms and Conditions shall immediately terminate and you shall immediately cease all use of the Subscription Services;
(b) you shall return and make no further use of any equipment, property, documentation, and other items (and all copies of them) belonging to Bright;
(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; and
(d) you shall immediately pay Bright all of Bright’s outstanding unpaid invoices and interest and, in respect of the Subscription Services supplied but for which no invoice has been submitted, Bright shall submit an invoice, which shall be payable by you immediately upon receipt.
17. Force majeure
Bright shall have no liability to you under these Terms and Conditions if it is prevented from or delayed in performing its obligations under these Terms and Conditions, or from carrying on its business, for any reason beyond its reasonable control.
18. General Provisions
18.1 In the event of any inconsistency between any other terms and these Terms and Conditions, these Terms and Conditions shall prevail.
18.2 No variation of these Terms and Conditions shall be effective unless it is approved by Bright.
18.3 No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.4 Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of any rights or remedies provided by law.
18.5 If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms and Conditions.
18.6 These Terms and Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
18.7 Each party acknowledges that in entering into these Terms and Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions.
18.8 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions.
18.9 You shall not, without the prior written consent of Bright, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.
18.10 Bright may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.
18.11 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.
18.12 These Terms and Conditions do not confer any rights on any persons or third parties (other than to Bright and you and, where applicable, their successors and permitted assigns).
18.13 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 express post or recorded delivery post to the other party at its address, which for you, shall be included in your Registration and for Bright is Bright Limited, (trading as Bright Software Group), Unit 35, Duleek Business Park, Co. Meath A92 N15E, Ireland.
18.14 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 express 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 that delivery service.
19. Governing law
These Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Ireland.
Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).