Terms & Conditions
These Terms and Conditions together with the applicable Sales Agreement constitute a legal agreement which contains the entire agreement between the licensee detailed in the relevant Sales Agreement (“Licensee” or “You”) and the company detailed in the relevant Sales Agreement (“Company” or “Us”) with respect to the subject matter described herein (Together with the Sales Agreement) the Company and Licensee hereby agree as follows:
1. Licence and scope of agreement. In consideration of the payment of any licence fees or related service fees as detailed in the Sales Agreement (“Fees”), You are hereby granted a non-exclusive, non-transferable, non-sub-licensable right to use a preview version of the Company software as specified in the relevant Sales Agreement, in the form made available by the Company from time to time (the "Software") by Your authorised employees (“Users”) solely for trial and evaluation purposes and in connection with Your business, in the Territory detailed in the Sales Agreement and for the Term (as defined in clause 2 below), subject to the total number of permitted Users set out in the Sales Agreement as the 'User Limit'. You hereby authorise Company to access your computer infrastructure to the extent necessary to set up and configure the Software for You. You will be responsible for Users’ compliance with this Agreement.
2. Term. This Agreement is effective from the effective date detailed in the relevant Sales Agreement (“Effective Date”) for the period as agreed in writing between the parties in the Sales Agreement (the "Term"), unless terminated earlier as set forth herein. This Agreement will terminate automatically if You fail to comply with any of the limitations or other requirements described herein. At the end of the Term or upon the request of Company, whichever is earlier, You will cease to access the Software and/or the Services as applicable, and make no further use whatsoever of the Software and/or the Services, except to the extent that may be permitted under any subsequent agreements between You and Company. You will promptly return to Company or at Company’s request permanently erase or destroy from all of Your devices and systems any of Company’s confidential information as detailed in clause 10 herein.
3. Company’s Rights. You acknowledge that all right, title, and interest in and to the Software and Services, including associated intellectual property rights, are owned by and shall remain with Company and its licensors. This Agreement does not convey to You any rights or interest in or to the Software or Services, but only a limited right of use revocable in accordance with the terms of this Agreement. All rights not expressly set forth hereunder are reserved by Company.
4. Licensee Data. You shall own all right, title and interest in and to all the data, information, works, or materials ("Data") which are uploaded or otherwise submitted to the Software by You, by Users, or by any other person for or on behalf of You or the Users, including indirectly by any third party application used by You ("Licensee Data"). You shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Licensee Data. You hereby grant to Us a worldwide, non-exclusive, irrevocable, perpetual, royalty free licence to use the Licensee Data for the purpose of providing the Services or (if different), access to the Software, and for the purposes envisaged by clause 11.
5. Restrictions. You will not: (i) use the Software or Services in a live product environment; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties), (iii) license, sell, resell, transfer, rent, lease, distribute, exploit or otherwise make the Software or Services available to anyone other than the Users, (iv) use the Software or Services to store or transmit infringing, obscene, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (v) use the Software or the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or (vi) copy, modify, transmit, distribute, frame or mirror any Software in any form or media or by any means, (vii) use the Software or Services to store or transmit malicious code or in any way that is unlawful or fraudulent, (viii) interfere with, damage or disrupt the integrity or performance of the Software or Services or third party data, (ix) attempt to gain or assist third parties to gain unauthorised access to the Software or Services or their related systems or networks, or (x) access the Software or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
6. Payment. Company shall invoice You the full amount of the Fees on the Effective Date (as detailed in the Sales Agreement). You agree to pay the Fees within 30 days of receipt of Company’s invoice to You for the same.
7. Indemnity. Company shall defend You against any third party claim that the use of the Software in accordance with this Agreement infringes any third party intellectual property right in England & Wales and shall indemnify You for and against any amounts awarded against You in judgment or settlement of such claims, provided that (i) Company is given prompt notice of such claim; (ii) You provide reasonable co-operation to Company in the defence and settlement of such claim, at Company's expense; (iii) Company is given sole authority to defend or settle the claim; and (iv) You make no admission of liability or fault whether on Your behalf or on behalf of Company. Company shall not shall not in any circumstances have any liability (including in respect of the preceding sentence) if the alleged infringement is based on: (i) modification of the Software by anyone other than Company; or (ii) Your or any User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to You by Company; or (iii) Your or any User’s use of the Software after notice of the alleged or actual infringement from Company or any appropriate authority; or (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred. In the defence or settlement of any claim to which this clause refers, Company may at its sole option and expense either: (i) procure for You the right to continue using the Software in the manner contemplated by this Agreement; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate this Agreement immediately by providing written notice to You, without liability to You.
8. Exclusion of Warranties. The Software and Services are provided to Licensee "as is", and any use by Licensee of the Software and Services during the term will be at Licensee's sole risk. Company makes no warranties relating to the Software or Services and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, or fitness for a particular purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
9. Limitation of Liability. Company’s total, cumulative liability to You or any other party for any loss or damages resulting from any claim arising out of or relating to this Agreement, including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the Fees paid by You hereunder. In no event shall Company be liable for any indirect, incidental, consequential, special, or exemplary damages, loss of profits, loss of business, or loss or corruption of data, even if You have advised Company of the possibility of such damages. The limitations of liability in this clause 9 shall apply to the fullest extent permissible at law but do not limit any liabilities which may not be excluded by law (including death or personal injury caused by negligence, fraud or fraudulent misrepresentation).
10. Confidentiality. Each Party undertakes that it shall not at any time disclose to any person or use any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, or such other information which ought reasonably to be regarded as confidential, except as permitted herein. The Licensee hereby acknowledges and agrees that the Software and the form in which Data are visualised or presented on or by the Software from time to time, are the confidential information of the Company. This clause 10 shall survive termination of this Agreement for as long as information shared under this Agreement is reasonably considered confidential by the disclosing party. Information shall not be deemed to be confidential if such information (i) is, or becomes, publicly known other than through a breach of this Agreement, (ii) is in the possession of the receiving party prior to receipt thereof from the other party, (iii) is independently developed by the other party, or (iv) is lawfully disclosed to the receiving party by a third party who is not, to the receiving party's knowledge, subject to a confidentiality agreement or obligation relating to such disclosure. Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives or advisors who need to know such information for the purpose of exercising that party’s rights or carrying out its obligations under this Agreement (“Permitted Purpose”), provided that each party shall ensure such persons comply with this clause 10 and shall be liable for any failure of such persons to do so; or (ii) as may be required by law, regulation, a court of competent jurisdiction or any governmental or regulatory authority to the extent necessary for that purpose, and in each such case the party disclosing the other's confidential information shall, if legally permissible, inform the other party of the requirement without undue delay. No party shall use the other party's confidential information for any purpose other than the Permitted Purpose.
11. 11. Improvements. You hereby acknowledge and agree that the Company is entitled to monitor the Licensee's and its Users use of the Software and (as applicable) the Services from time to time for the purposes of improving its products and services and may use any reasonable means to do so: (i) aggregating Licensee Data with data relating to use of the Software or the Services by other customers; (ii) analysing use of the Software or the Services and preparing documents, reports, and derivative data sets, provided in each case that the Licensee's and its Users' identity is not disclosed; and (iii) disclosing and otherwise exploiting the documents, reports and data sets to which (ii) refers, but not so as to disclose the identity of the Licensee or its Users. You hereby agree that any act within the scope of this clause may be performed on behalf of the Company by agents or contractors of the Company or by providers of services to Us. The Company welcomes suggestions, comments and other feedback on the Software and (as applicable) the Services (“Feedback”), to assist the Company in improving its products and services. If You provide Us with Feedback, You hereby acknowledge and agree that: (i) we are not subject to any confidentiality obligations in respect to the Feedback; (ii) the Feedback is not confidential or proprietary information belonging to You or any third party and You have all of the necessary rights to disclose the Feedback to Us; (iii) the Company may freely use the Feedback without any restrictions; and (iv) You are not entitled to receive any compensation or reimbursement for any kind of Feedback.
12. General.
12.1. This Agreement does not create any agency, partnership or joint venture relationship.
12.2. Company may, but the Licensee may not without Company’s prior written consent, assign, novate, subcontract or otherwise transfer any of its rights or obligations under this Agreement.
12.3. This Agreement constitutes 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.
12.4. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute a single instrument.
12.5. No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
12.6. No failure or delay by either party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver, prevent or restrict the future 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.
12.7. If any provision or part-provision of this Agreement 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 this Agreement.
12.8. No one other than a party to this Agreement shall have any right to enforce any of its terms.
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
If there is any conflict between any terms contained in a Sales Agreement and these Terms, the terms contained in the relevant Sales Agreement will prevail.
