ENTRILY LIMITED: GENERAL TERMS AND CONDITIONS FOR SOFTWARE LICENSEES
1.1 This page sets out the general terms and conditions (General Terms) which apply to any Licensed IP (as defined below) which the Licensor (as defined below) licences to any Licensee (as defined below).
1.2 The parties’ agreement is made up of (i) these General Terms; (ii) the Commercial Terms; and (iii) any other written document either issued by the Licensor (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement, and apply to the contract between the parties to the exclusion of any other terms that the Licensee may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in order of priority in the event of any inconsistency or conflict, with documents appearing earlier in the list taking priority over documents appearing earlier in the list.
1.4 Any order placed by the Licensee shall only be deemed to be accepted upon the Licensor’s clickthrough acceptance or signature of the Commercial Terms at which point and on which date the Agreement shall come into existence.
2.1 In these General Terms the following terms shall have the following meanings and the following rules of interpretation shall apply:
Agreement has the meaning given to it in clause 1.2 above.
Authorised Users means those employees and agents of the Licensee only, who have been authorised by the Licensee to use the Licensed IP to develop Licensed Deliverables for End-Users.
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland or the jurisdiction in which the Licensee is based.
Claim has the meaning given in clause 11.5.
Commencement Date means the date specified for commencement of the licence in the Commercial Terms, or if none, the date the Commercial Terms were signed or agreed to by the last of the Licensee or Licensor to sign or the Licensee’s clickthrough acceptance.
Commercial Terms means the written Commercial Terms provided by the Licensor to the Licensee and signed by both parties, setting out the key commercial terms of the Agreement.
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information of commercial value known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation the Licensed IP and its ancillary documentation) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party.
Data Protection Legislation: means the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
End-Users: means those customers of the Licensee and its Group only who represent end-users of the Licensed Deliverables developed by the Licensee and its Authorised Users.
Export Control Laws: has the meaning given to it in clause 13.1.
General Terms: has the meaning given to it in clause 1.1 above.
Good Industry Practice means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the sector of business within which the Licensee operates.
Group means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
Group Company means any company within any Group.
Holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
Insurances has the meaning given to it in the Commercial Terms.
Intellectual Property Rights means patents, rights to inventions, supplementary protection certificates, copyright and related rights, trade marks and services marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted) renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Licence means the licence granted under clause 3.1.
Licensed Deliverables means any product, component or service (including software as a service) which is made, developed or used in accordance with, embodies, incorporates or utilises, any of the Licensed IP, including the Software, for the benefit of End-Users.
Licence Fee means the total amount set out or provided for in the Commercial Terms or otherwise payable in accordance with the terms of the Agreement, to be paid in accordance with the timeframes and other stipulations set out in the Agreement.
Licensed IP has the meaning given to in the Commercial Terms.
Licence Restrictions means the licence restrictions specified in the Commercial Terms or elsewhere in the Agreement.
Licensee means the person signing or agreeing to the Commercial Terms, which shall be the company on whose behalf such person works or by whom such person is employed, where an individual (if applicable).
Licensee Data means any data, content and images provided by the Licensee and any Authorised Users whilst using the Licensed IP, including any data collected by the Software.
Licensee Equipment means the functioning hardware and any supporting software required to access and use the Software and provide it to End Users, as may be specified in the Commercial Terms.
Licensor means ENTRILY LIMITEDd, a company incorporated and registered in Northern Ireland with company number NI650453 whose registered office is at 152 Malone Road, Belfast, United Kingdom, BT9 5LJ.
Payment Terms has the meaning given to it in the Commercial Terms.
Regulatory Authority means any competent authority in any country or region which regulates the business of the Licensee.
Relevant Claim has the meaning given in clause 11.7.
Services means any additional consultancy services which the Licensor may agree in writing to provide to the Licensee, as set out in the Commercial Terms.
Software means the software algorithms, libraries and programmes comprised within the Licensed IP and detailed in the Commercial Terms only, including any upgrades either: (a) purchased by the Licensee from time to time in return for payment of the Licensor’s then prevailing charges; or (b) to which the Licensee is otherwise entitled.
Term means the date commencing on the Commencement Date and enduring until termination of term specified in the Commercial Terms. Such term shall renew automatically for successive periods as outlined in the Commercial Terms, subject to the Licensee not providing prior written notice in accordance with the Agreement to the Licensor that it does not wish the Agreement to be renewed for such successive terms.
Territory means worldwide
UK Data Protection Legislation means any data protection legislation from time to time in force in the UK.
2.2 Writing or written includes neither faxes nor email.
2.3 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.4 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
2.5 Clause headings shall not affect the interpretation of these General Terms. References to clauses and schedules are to the clauses of these General Terms.
2.6 Words in the singular shall include the plural and vice versa.
2.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
3.1 Subject to payment and the other restrictions set out in the Agreement, the Licensor hereby grants to the Licensee, subject to the Licence Restrictions a non-exclusive, non-transferable, non-sub-licensable right to permit the Authorised Users to use the Licensed IP to develop Licensed Deliverables to provide to End Users within the Territory during theTerm.
3.2 The Licensee not be entitled to grant sub-licences under the Agreement.
3.3 The Licensee undertakes that it shall be responsible for compliance by Authorised Users with the terms of the Agreement, and that the restrictions on the Licensee set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons.
3.4 The Licensee shall not access, store, distribute or transmit any viruses or other harmful or dangerous code during the course of its use of the Software.
3.5 The Licensee shall not: (a) other than as permitted by law, 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; nor 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 Software in order to build a product or service which competes with the Software; or (c) use the Software to provide services to third parties; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Licensed IP available to any other person except the Authorised Users.
3.6 The Licensee shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Licensed IP and, in the event of any such unauthorised access or use, promptly notify the Licensor.
3.7 The Licence is granted to the Licensee only, and shall not be considered granted to any person within the Licensee’s Group.
3.8 In relation to scope of use of the Software, use of the Software shall be restricted to use of the Software in object code form.
3.9 The Licensee shall keep a complete and accurate record of the Licensee’s copying and disclosure of the Software and its Authorised Users, and produce such record to the Licensor on request from time to time and notify the Licensor as soon as it becomes aware of any unauthorized use of the Software by any person.
4 PROVISION OF FURTHER KNOW-HOW, INFORMATION OR SERVICES
4.1 The Licensor may from time to time make available to the Licensee such further know-how relating to the development and evaluation of the Licensed Deliverables as the Licensor is at liberty to disclose and, in the opinion of the Licensor, is reasonably necessary and useful for such development or marketing of any software product incorporating the Licensed IP.
4.2 The know-how supplied by the Licensor under clause 4.1 shall, where it has been identified by describing and recording it when provided to the Licensee, be deemed part of the Licensed IP, and subject to the terms of the Agreement.
4.3 Nothing in the Agreement shall constitute any representation or warranty that the Licensed IP or any other know-how supplied to the Licensee under clause 4.1 is accurate, up to date, complete, or relevant to the Licensed IP.
5 LICENSEE DATA
5.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5.1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 5.1, Applicable Laws means (for so long as and to the extent that they apply to the Licensor) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK. Any defined terms used in this clause 5 which are not otherwise defined in these General Terms shall have the meaning given to them within the UK Data Protection Legislation.
5.2 The Licensee hereby grants the Licensor, to the extent possible under the mandatory data protection and data privacy laws of the country within which the data subjects in question are based, and under the Applicable Laws, a non-exclusive, perpetual, worldwide, royalty free, transferable, irrevocable and sub-licensable to access and use all Licensee Data collected through or by the Software, subject to any limitations pursuant to clause 9.1.
5.5 Without prejudice to the generality of clause 5.1, the Licensee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data provided to the Licensor, including the Licensee Personal Data, for the duration and purposes of the Agreement.
5.6 Without prejudice to the generality of clause 5.1, the Licensor shall, in relation to any Licensee Personal Data: (a) process that Licensee Personal Data only on the written instructions of the Licensee unless the Licensor is required by Applicable Laws to otherwise process that the Licensee Personal Data. Where the Licensor is relying on laws of a member of the European Union or European Union law as the basis for processing the Licensee Personal Data, the Licensor shall promptly notify the Licensee of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Licensor from so notifying the Licensee; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Licensee Personal Data and against accidental loss or destruction of, or damage to, the Licensee Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; (c) ensure that all personnel who have access to and/or process the Licensee Personal Data are obliged to keep the Licensee Personal Data confidential; (d) not transfer any the Licensee Personal Data outside of the European Economic Area unless the prior written consent of the Licensee has been obtained and the following conditions are fulfilled: (i) the Licensee or the Licensor has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) the Licensor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any the Licensee Personal Data that is transferred; and (iv) the Licensor complies with reasonable instructions notified to it in advance by the Licensee with respect to the processing of the Licensee Personal Data; (e) assist the Licensee, at the Licensee’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify the Licensee without undue delay on becoming aware of a Personal Data breach; (g) at the written direction of the Licensee, delete or return The Licensee Personal Data and copies thereof to the Licensee on termination of the agreement unless required by Applicable Law to store the Licensee Personal Data; and (h) maintain complete and accurate records and information to demonstrate its compliance with this clause 5.6.
5.8 In the event of any loss or damage to the Licensee Data, save for a breach of obligations arising pursuant to the Data Protection Legislation, the Licensee’s sole and exclusive remedy shall be for the Licensor to use reasonable commercial endeavours to restore the lost or damaged Licensee Data from the latest back-up of such Licensee Data maintained by the Licensor in accordance with its archiving procedure. The Licensor shall not be responsible for any loss, destruction, alteration or disclosure of the Licensee Data caused by any third party or any damages (whether direct, indirect or consequential) suffered as a result, save for any breaches of Data Protection Legislation which cannot be excluded or disclaimed under relevant law and provided always that the Licensor uses reasonable endeavours to (where appropriate) restore such the Licensee Data from the latest backup maintained by it as at that date.
5.9 The Licensee represents and warrants that: (a) it has obtained all necessary rights, releases and permissions to provide all the Licensee Data to the Licensor and to grant the rights granted to the Licensor in clause 5.1 above; and (b) the Licensee Data and its transfer to and use by the Licensor as authorized by the Licensee under the Agreement do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies; and (c) the Licensee Data shall not contain any Sensitive Personal Data. Other than its obligations set out expressly under the Agreement and its obligations under Applicable Laws, the Licensor assumes no responsibility or liability for Licensee Data, and the Licensee shall be solely responsible for Licensee Data and the consequences of using, disclosing, storing, or transmitting it.
5.10 The Licensee or its licensors shall own all rights, title and interest in and to all of the Licensee Data and the Licensee shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data and the means by which it acquired such Licensee Data. Backup of all Licensee Data is the sole responsibility of the Licensee.
5.11 The Licensee understands and acknowledges that as between the parties, the collection of Licensee Data by the Software necessarily involves transmission of the Licensee Data over networks that are not owned, operated or controlled by the Licensor, and that the Licensor cannot be held responsible for any Licensee Data lost, altered, intercepted or stored across such networks. The Licensor does not guarantee that its security procedures will be error-free, that transmissions of the Licensee Data will always be secure or that unauthorized third parties will never be able to defeat the Licensor’s security measures or those of the Licensor’s third party service providers, without prejudice to the Licensor’s obligations under Applicable Laws.
6 LICENSEE’S OBLIGATIONS
6.1 The Licensee shall, in exercising its rights under the Agreement, comply with all the requirements of the Agreement, all specifications, standards and directions relating to any Licensed Deliverables it may develop in accordance with all applicable laws, regulations, codes of practice (including complying with all regulations and practices in force or use in the Territory to safeguard the Licensor’s rights in the Licensed IP), and with all due skill, care and diligence, including Good Industry Practice.
6.2 The Licensee shall promptly provide the Licensor with copies of all communications relating to the Licensed IP or the Licensed Deliverables with any regulatory, industry or other authority, including any Regulatory Authority where there is likely to be any kind of implication for the Licensor arising out of or in respect of such communications.
6.3 The Licensee shall: (a) at its cost, provide the Licensor with all necessary co-operation in relation to the Agreement or such information as the Licensor shall reasonably require in connection with the subject matter of the Agreement, including so as to assist the Licensor, its agents or contractors in rendering the Services; (b) carry out all other Licensee responsibilities set out in the Agreement in a timely and efficient manner; (c) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Licensor, its contractors and agents to perform their obligations under the Agreement, trial and evaluate the Licensed IP within the Territory as contemplated under the Agreement; (d) provide a single main point of contact who can address questions or issues relating to the Agreement; and (e) be solely responsible at its own cost for all exploitation of the Licensed IP and development of the Licensed Deliverables.
6.4 The Licensee acknowledges and agrees that the exercise of the Licences is subject to all applicable laws, enactments, regulations and other similar instruments in the Territory (including those relating to data protection and privacy), codes of practice and Good Industry Practice and the Licensee understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance of all (or the highest) of these.
6.5 The Licensee shall not, nor directly or indirectly assist any other person to do or omit to do anything to diminish the rights of the Licensor in any Licensed IP.
6.6 The Licensee shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the Licensed Deliverables, as contemplated under the Agreement.
6.7 The Licensee shall not: (a) represent itself as an agent of the Licensor for any purpose; (b) pledge the Licensor’s credit; (c) give any condition or warranty on the Licensor’s behalf; (d) make any representation on the Licensor’s behalf; or (e) commit the Licensor to any contracts.
6.8 The Licensee shall be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment, unless otherwise specified in the Commercial Terms or Technical Specification.
7 CHARGES AND PAYMENT
7.1 The Licensee shall pay to the Licensor the Licence Fee in accordance with the Payment Terms and such sum shall not be returnable nor available for credit against any other sums payable by the Licensee under the Agreement.
7.2 All sums payable under the Agreement are exclusive of VAT (or similar tax) and shall be paid free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law the Licensee shall pay to the Licensor such sum as will, after the deduction or withholding has been made, leave the Licensor with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. If the Licensee is required by law to make a deduction or withholding, the Licensee shall, within five Business Days of making the deduction or withholding, provide a statement in writing showing the gross amount of the payment, the amount of the sum deducted and the actual amount paid. The Licensee shall use all reasonable endeavours to assist the Licensor to claim recovery or exemption under any double taxation or similar agreement with respect to any such deduction.
7.3 All sums payable under the Agreement shall be paid in the currency denominated in the Commercial Terms to the credit of a bank account to be designated in writing by the Licensor.
7.4 In the event of any delay in paying any sum due under the Agreement by the due date, the Licensee shall pay to the Licensor interest (calculated on a daily basis) on the overdue payment from the date when such payment was due to the date of actual payment at a rate of 8% per annum over the base rate of HSBC Bank plc from time to time, compounded monthly.
7.5 All amounts and fees stated or referred to in the Agreement are non-cancellable and non-refundable.
Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit any third party to do so) other than as strictly necessary for the performance of its rights and obligations under the Agreement. The provisions of this clause shall not apply to any information which: (a) is or comes into the public domain without breach of the Agreement; or (b) was in the possession of the receiving party prior to receipt from the disclosing party without an obligation of confidence; or (c) was obtained from a third party free to divulge such information; or (d) is required to be disclosed by law or by any legal, regulatory or administrative body.
9 THIRD PARTY LICENCE TERMS
9.1 The Software utilises third party software which is subject to certain third party licence terms. Accordingly the following terms and conditions shall apply to the Licensee’s and the Authorised Users’ use of the Software in addition to the provisions set out elsewhere in the Agreement, as well as any other relevant third party licence terms which may apply from time to time:
10 PROTECTION OF THE LICENSED IP
10.1 The Licensee shall immediately notify the Licensor in writing, giving full particulars, if any of the following matters come to its attention: (a) any actual, suspected or threatened infringement of the Licensed IP; (b) any actual, suspected or threatened unauthorised disclosure, misappropriation or misuse of the Licensed IP; (c) any claim made or threatened that exploitation of the Licensed IP infringes the rights of any third party; or (d) other form of attack, charge or claim to which the Licensed IP may be subject.
10.2 In respect of any of the matters listed in clause 10.1: (a) the Licensor shall, in its absolute discretion, decide what action, if any, to take; (b) if the Licensor decides, in its absolute discretion, to institute proceedings, it may do so in its name alone; (c) the Licensor shall have exclusive control over, and conduct of, all claims and proceedings; (d) the Licensee shall not make any admissions other than to the Licensor and shall provide the Licensor with all assistance that it may reasonably require in the conduct of any claims or proceedings, at the Licensor’s cost; and (e) the Licensor shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
10.3 The Licensee shall not institute proceedings in respect of the Licensed IP, except as expressly authorised by the Licensor.
10.4 Nothing in the Agreement shall constitute any representation or warranty that the exercise by the Licensee of the Licence will not infringe the rights of any person.
11 LIABILITY AND INDEMNITY
11.1 The Licensee acknowledges that: (a) the technology comprised in the Licensed IP is at an early stage of development; (b) any results, conclusions and statements comprised in the Licensed IP, and any Services provided, cannot be guaranteed and accordingly are provided on an “as is” basis; (c) the use and interpretation of the Licensed IP requires specialist skill and knowledge; (d) it has that skill and knowledge and undertakes that it will exercise that skill and knowledge and appropriate judgment when using the Licensed IP; (e) it shall be solely responsible, as against the Licensor, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Licensee, any sub-licensee or any other third party based (wholly or in part) on the Licensed IP; and (f) it is in the best position to ascertain any likely loss it may suffer in connection with the Agreement, that it is therefore responsible for making appropriate insurance arrangements to address the risk of any such loss and that the provisions of this clause 11.1 are reasonable in these circumstances.
11.2 To the fullest extent permitted by law: (a) the Licensor shall not be liable to the Licensee for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising from the Licensee’s exercise of the Licence; (b) subject to clause 11.9: (a) the Licensor shall not in any circumstances have any liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: special damage even if the Licensor was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or corruption of data; (c) the total liability of the Licensor, whether in contract, tort (including negligence) or otherwise and whether in connection with the Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the amounts paid by the Licensee to the Licensor over the period of 12 months immediately preceding the date of the cause of any relevant claim arose; (d) the Licensee agrees that, in entering into the Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in the Agreement) that it shall have no remedy in respect of such representations and (in either case) the Licensor shall have no liability in any circumstances otherwise than in accordance with the express terms of the Agreement; (e) any warranties, conditions and other terms implied by statute or common law of any jurisdiction are excluded from the Agreement, except as expressly provided in the Agreement; and (f) the Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to the Licensor by the Licensee in connection with the Services, or any actions taken by the Licensor at the Licensee’s direction.
11.3 The above notwithstanding, the Licensor warrants that it shall use reasonable endeavours to ensure that the Software will be available for use for a period of 3 months from the Commencement Date. If, during the this period, the Licensee notifies the Licensor in writing of any failure of the Licensor to comply with this warranty, and such failure does not result from the Licensee, or anyone acting with the authority of the Licensee, having amended the Software or used it outside the terms of the Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software or hardware not approved by the Licensor, or from any such event as outlined in clause 16.11, and the Licensor is unable to remedy such failure within 4 weeks of the date of notice, the Licensor shall, at the Licensor’s option, do one of the following (a) replace the Software; or (c) terminate the Agreement immediately by notice in writing to the Licensee and refund any of the Licence Fee paid by the Licensee as at the date of termination (less a reasonable sum in respect of the Licensee’s use of the Software to the date of termination), provided the Licensee provides all the information that may be necessary to assist the Licensor in resolving the failure.
11.4 Save as outlined in clause 11.3 above, the Licensor does not warrant that the use of the Software will be uninterrupted or error-free, and the Licensee accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been generally developed to meet the individual requirements of the Licensee (without prejudice to the terms of the Commercial Terms as regards any specific software development Services to be provided by the Licensor to the Licensee).
11.5 The Licensee shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) (each a Claim) suffered or incurred by the Licensor arising out of or in connection with the Licensee’s exercise of its rights granted under the Agreement or any breach by the Licensee of the terms of the Agreement.
11.6 This indemnity shall not cover the Licensor to the extent that a Claim results from the Licensor’s negligence or wilful misconduct.
11.7 If any third party makes a Claim, or notifies an intention to make a Claim, against the Licensor which may reasonably be considered likely to give rise to a liability under this indemnity ( Relevant Claim), the Licensor shall: (a) as soon as reasonably practicable, give written notice of the Relevant Claim to the Licensee, specifying the nature of the Relevant Claim in reasonable detail; (b) not make any admission of liability, agreement or compromise in relation to the Relevant Claim without the prior written consent of the Licensee (such consent not to be unreasonably conditioned, withheld or delayed), provided that the Licensor may settle the Relevant Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Licensee, but without obtaining the Licensee’s consent) if the Licensor reasonably believes that failure to settle the Relevant Claim would be prejudicial to it in any material respect, including on reputational grounds; (c) give the Licensee and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Licensor, so as to enable the Licensee and its professional advisers to examine them and to take copies (at the Licensee’s expense) for the purpose of assessing the Relevant Claim; and (d) subject to the Licensee providing security to the Licensor to the Licensor’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Licensee may reasonably request to avoid, dispute, compromise or defend the Relevant Claim.
11.8 If a payment due from the Licensee under this clause 11 is subject to tax (whether by way of direct assessment or withholding at its source), the Licensor shall be entitled to receive from the Licensee such amounts as shall ensure that the net receipt, after tax, to the Licensor in respect of the payment is the same as it would have been were the payment not subject to tax.
11.9 The exclusions in clause 11.2 shall apply to the fullest extent permissible at law, but nothing in the Agreement shall exclude liability for: (a) death or personal injury caused by the negligence of the Licensor, its officers, employees, contractors or agents; (b) fraud or fraudulent misrepresentation; or (c) any other liability which may not be excluded by law.
11.10 All dates supplied by the Supplier for the delivery of the Licensed IP or the provision of Services shall be treated as approximate only, and time shall not be of the essence for the purposes of the Agreement. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
11.11 The Agreement shall not prevent the Licensor 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 the Agreement.
11.12 The Licensee shall, at its expense, carry the Insurances including any additional insurances from time to time required to support its liabilities under the Agreement. The Licensee shall ensure that such insurance policies note the Licensor’s interest on the policy and remain in effect throughout the duration of the Agreement and for a period of 6 years after termination or expiry of the Agreement, and shall supply the Licensor with a copy of such policy on request. Any such insurance policy shall prohibit the lapse of or any cancellation or non-renewal of such insurance, without the Licensor’s prior written consent. If the Licensee fails to take out the insurance policies it is contractually required to the Licensor shall, provided it has given the Licensee two weeks’ written notice to cure such failure, take out such insurances on its own behalf and charge the Licensee for the costs of same, as a debt payable immediately on demand.
12 TERM AND TERMINATION
12.1 The Agreement shall commence on the Commencement Date, or the date the Commercial Terms is signed by both parties, whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Term.
12.2 The Licensee shall have the right to terminate the Agreement or any of the Licences on any ground, on giving the Licensor not less than 7 days’ written notice of termination.
12.3 Without prejudice to any rights that have accrued under the Agreement or any of its rights or remedies, the Licensor may terminate the Agreement or any of the Licences immediately by giving written notice to the Licensee if any of the following circumstances occurs: (a) the Licensee fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; (b) the Licensee commits a breach of the Agreement (other than failure to pay any amounts due under the Agreement) and (if such breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so; (c) the Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 129 of the Insolvency (Northern Ireland) Order 1989; (d) the Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding-up of the Licensee; (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed over the Licensee; (g) a floating charge holder over the assets of the Licensee has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Licensee or a receiver is appointed over the assets of the Licensee; (i) a creditor or encumbrancer of the Licensee attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (j) any event occurs, or proceeding is taken, with respect to the Licensee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.3(c) to clause 17.3(j) (inclusive); (k) the Licensee suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or (l) the Licensee challenges the validity of any of the Licensed IP.
13 EXPORT AND COMPLIANCE
13.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Agreement (or any products, including software, incorporating any such data), including the Licensed IP, in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
13.2 Each party undertakes: (a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and (b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
14 EFFECT OF TERMINATION
14.1 On expiry or termination of the Agreement for any reason and subject to any express provisions set out elsewhere in the Agreement: (a) all outstanding sums payable by the Licensee to the Licensor shall immediately become due and payable; (b) the Licence shall cease; (c) the Licensee shall cease all exploitation of the Licensed IP and any other know-how provided by the Licensor to the Licensee, except insofar as same ceases or has ceased to be confidential, unless this is or was as a consequence of the default of the Licensee; (e) the Licensee shall promptly return to the Licensor, at the Licensee’s expense or, if the Licensor so elects, permanently delete, all records and copies (including electronic copies) of the Licensed IP (including the Software) and know-how made available to the Licensee under clause 4.1; and (f) each party shall promptly return to the other, at its own expense or, if the other party so elects, permanently delete, all records and copies (including electronic copies) of the other’s Confidential Information (including in this case any Personal Data (as defined in the General Data Protection Regulation 2016) which it was processing on the other party’s behalf) and certify to the other party if requested in writing (such certificate to be signed by a director of that party) that it has complied with the requirements of this clause 14.1.
14.2 The expiry or termination of the Agreement, for any reason, shall not affect any provision of the Agreement which is expressed to survive or operate in the event of expiry or termination, and shall be without prejudice to the provisions of this clause 14 and to any rights of either party which may have accrued by, at, or up to, the date of such expiry or termination.
15 ASSIGNMENT AND OTHER DEALINGS
15.1 The Licensee shall not without the prior written consent of the Licensor (such consent not to be unreasonably withheld or delayed) assign, transfer, mortgage, charge or deal in any other manner with any of its rights or obligations under the Agreement, save as permitted herein.
15.2 The Licensor may at any time and without the consent of the Licensee assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights or obligations under the Agreement provided that the Licensor shall notify the Licensee as soon as possible after any such dealing, and include particulars of the assignee, mortgagee or chargee.
15.3 The Licensee, if permitted in writing by the Licensor to do so, seeking to assign any or all of its rights under the Agreement may disclose to a proposed assignee any information in its possession that relates to the Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 15.3 shall be made until notice of the identity of the proposed assignee has been given to the Licensee and the proposed assignee has signed appropriate confidentiality restrictions on terms reasonably acceptable to the Licensor prior to receipt of such information. .
15.4 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.5 The Licensee shall on request from the Licensor execute any agreements or other instruments (including any supplement or amendment to the Agreement) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge, trust or other dealing referred to in clause 15.2.
16 GENERAL LEGAL TERMS
16.1 No amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.2 Each party shall, and shall use all reasonable endeavours to procure, in each case at its own expense, that any necessary third party shall, execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Agreement.
16.3 No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.4 The Agreement and the documents referred to in it constitute the whole agreement between the parties and supersede any previous agreement between the parties relating to its subject matter.
16.5 Each of the parties acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in the Agreement.
16.6 If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
16.7 If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
16.8 The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of the Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
16.9 No person other than a party to the Agreement, and their respective successors and permitted assigns, shall have any rights to enforce any term of the Agreement.
16.10 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, nor authorise either party to make or enter into any commitments for or on behalf of the other party.
16.11 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 3 months, the party not affected may terminate the Agreement or any of the Licences by giving 4 weeks’ written notice to the other party. It is agreed that, without limitation, neither strike action nor failure on the part of any supplier shall constitute an event, circumstance or cause beyond the relevant party’s reasonable control.
16.12 Any notice required to be given under the Agreement shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice at its address as set out below, directed for the attention of the managing director, or as otherwise specified by the relevant party by notice in writing to each other party.
16.13 Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the address for each party set out in the Commercial Terms marked for the attention of the “Head of Legal”; (b) if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or (c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
16.14 A notice required to be given under the Agreement shall not be validly given if sent by e-mail or fax.
16.15 The provisions of clauses 16.12 to 16.14 (inclusive) shall not apply to the service of any proceedings or other documents in any legal action.
16.16 Without prejudice to any other rights or remedies that the Licensor may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of the Agreement by the Licensee. Accordingly, the Licensor shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of the Agreement.
16.17 The Agreement 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 Northern Ireland and the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
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