1E License Agreement
DO NOT INSTALL THIS PRODUCT UNTIL LICENSEE CAREFULLY READS THE FOLLOWING TERMS AND CONDITIONS.
CLICK ON THE ‘I accept to the License Agreement’ BUTTON TO INDICATE THAT THE SINGLE END-USER OF THIS SOFTWARE (THE "LICENSEE") ACCEPTS THESE TERMS AND CONDITIONS. IF LICENSEE OBJECTS TO ANY TERM OR CONDITION, THEN CLICK ON THE ‘Cancel’ BUTTON TO ABORT INSTALLATION AND IMMEDIATELY RETURN THIS PRODUCT TO THE PLACE OF PURCHASE.
UNLESS OTHERWISE AGREED IN WRITING PRIOR TO THE DOWNLOAD AND INSTALLATION OF ANY 1E SOFTWARE The Licensee acknowledges that Licensee has read this agreement and understands this agreement (the "Agreement") is the final, complete and exclusive statement of the entire agreement between 1E Limited and Licensee. This Agreement will take precedence over any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this agreement, whether oral or written. No terms or conditions, other than those contained in this Agreement, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon 1E Limited unless made by a written agreement, executed by duly authorized representatives of both 1E Limited and Licensee. If you have any concerns around this agreement then you should NOT download or install the product. Please contact 1E on +44 208 326 3880 or email 1Egrouplegal@1e.com.
DEFINITIONS AND INTERPRETATION
In this Agreement including the Schedules the following words shall have the following meanings:
“Additional Charges” means 1E’s rates from time to time for work undertaken on a time and materials or fixed basis;
“Agreement” means the Agreement in which each and every Schedule referred to in the Agreement including this Schedule is included;
“Business Day” means any day other than Saturdays, Sundays or public holidays in England;
“Commencement Date” means the date of this Agreement, as indicated in Schedule 1;
“Consultancy Charges” means 1E’s fees for providing Consultancy Services, as set out in Schedule 1 and as may be varied in accordance with Clause 4.11;
“Consultancy Services” means the consultancy services to be provided by 1E if agreed by the Parties and as set out in the SOW;
“End Point” Means any device running an operating system, components of an operating system or multiple instances of an operating system to which 1E Software is deployed, if a device is running multiple operating systems each operating system may be defined as an End Point for the purposes of calculating the number of licenses required by the Licensee.
“Force Majeure” means the following: Acts of Nature; outbreak of hostilities, riot, civil disturbance, acts of terrorism; an act of any government or authority (including refusal or revocation of any licence or consent); fire, explosion, flood; power failure, failure of telecommunication lines, failure or breakdown of plant, machinery or vehicles; and any cause or circumstance whatsoever beyond the reasonable control of a Party;
“Group” means in respect of either party, that party and any direct subsidiary or holding company of such Party and any subsidiary of any such holding company or any company in which a Party holds 50% or more of the shares;
“Intellectual Property Rights” means all inventions (whether patentable or not), patents, utility models, designs (both registered and unregistered and including righ ts in semiconductor topographies), copyright, database rights, trade and service marks (both registered and unregistered) together with all applications for, right to the grant of and extensions of the same, and all other intellectual and industrial property including but not limited to all similar or analogous rights throughout the world, in each case for the full term of the relevant right;
“Licence Fee” means the initial Licence fee (as set out in Schedule 1 and any additional licence fees for additional Software Modules requested by the Licensee from time to time) payable by the Licensee to 1E for the Licence as specified in Schedule 1;
“Licensed Software Materials” means the Software (or the software modules as applicable), the Software Documentation, the New Releases, any Updates and any fixes created during the provision of the Maintenance Services;
“Maintenance Services” means the services to be provided by 1E in respect of the Software as specified in Schedule 3;
“Materials” means any and all know how, works of authorship, materials, inventions, devices, processes and discoveries developed, written, modified and/or produced by or on behalf of 1E (including without limitation by any sub-contractors, consultants, employees and agents acting on 1E’s behalf) in relation to or in the course of the performance of the Consultancy Services including without limitation any and all reports, studies, diagrams, computer programs, charts and specifications;
“New Releases” means a release of a new version of the Software that improves its functionality and which is deemed by 1E to be of benefit to the Licensee;
“Party” means each of the persons identified as parties to this Agreement and jointly “the Parties”;
“Program Error” means a fault in the Software diagnosed and rectified by 1E;
“RPI” means the Retail Price Index (all items) (or any other such index as may be published from time to time by HM Government of the United Kingdom in substitution for or in succession to such index);
“Scope of Work Agreement (SOW”) means the consultancy services provided by 1E and specified in Schedule 4;
“Services” means the Consultancy Services and the Maintenance Services to the extent such are provided by 1E under this Agreement;
“Software” means the software programs in object code form identified by title and reference number in Schedule 1;
“Software Documentation” means the instruction manuals, user guides and other information in respect of the Software to be made available by 1E at its discretion to the Licensee in either printed or machine readable form;
“Software Specifications” means the technical specifications from time to time published by 1E in respect of the Software;
“Training” means the training services delivered by 1E in accordance with Schedule 5
“Updates” means an update (but shall not include Software Modules) to the Software provided pursuant to the Maintenance Services; and
“Use” means the copying or transmission of the Software or (where in machine readable form) the Software Documentation for use in accordance with the instructions contained in the Software or (as the case may be) the Software Documentation.
1 In this Agreement unless the context requires otherwise:
1.1.1 the singular includes the plural and vice versa and any gender includes any other gender;
1.1.2 references to Clauses and Schedules are to clauses of, and schedules to, this Agreement;
1.1.3any reference to an enactment, order, regulation or other similar instrument includes a reference to that enactment, order, regul ation or instrument as from time to time amended, extended or re-enacted;
1.1.4references to persons include bodies corporate, unincorporated associations and partnerships, and any reference to the Parties include their respective successors, permitted assigns and personal representatives; and
1.1.5any reference to “company”, “subsidiary” and “holding company” shall be as defined in section 736 of the Companies Act 1985.
1.2The headings of this Agreement are for ease of reference only and shall not affect its interpretation or construction.
1.3 In the event of a conflict between any of the terms of this Agreement including its Schedules and appendices, the conflict shall be resolved according to the following order of priority:
1.3.1the Schedules of this Agreement;
1.3.2the Clauses of this Agreement; and
2 GRANT OF LICENCE, ACCEPTANCE AND PROVISION OF MAINTENANCE SERVICES
2.11E in consideration of the payment by the Licensee of the relevant Licence Fee 1E hereby:
2.1.1grants to the Licensee a non-exclusive, non-transferable, world-wide, subscription licence to Use the Software or, and the Software Documentation, any New Releases and any Updates) on the End Points and to possess and refer to the Software Documentation (the “Licence“); and
2.1.2agrees to provide the Maintenance Services for the duration of the subscription, in all cases in accordance with and subject to the terms and conditions of this Agreement.
2.21E may from time to time produce New Releases of the Software and offer such New Releases to the Licensee.
2.3The Licensee acknowledges that it has already evaluated the Software and accordingly the Software shall be deemed to be accepted with effect from delivery of the Software to the Licensee.
3.1 This Agreement shall commence on the Commencement Date and shall continue in force for the duration of the subscription agreement. This Agreement will automatically renew for additional periods of 12 months unless the Licensee provides no less than sixty (60) days written notice that it does not with to renew for an additional period.
4.1All amounts payable under this Agreement are exclusive of value added tax, which shall be paid by the Licensee at the rate and in the manner for the time being prescribed by law.
4.2The Licence Fee shall be payable by the Licensee within thirty (30) days of the date of 1E’s invoice.
4.3The Subscription Fee shall be levied by 1E annually in advance with effect from the date of this Agreement and shall be payable by the Licensee within thirty (30) days from the date of 1E’s invoice.
4.41E shall, upon thirty (30) days’ written notice to the Licensee and in every successive period of twelve (12) months during the currency of this Agreement, be entitled to vary the Subscription Fee by an amount equal to the higher of 5% and the rate of increase in RPI.
4.6All payments shall be made in the currency as stated in the invoice and by electronic payment to the 1E bank account specified in the same.
4.7 If the Licensee fails to pay 1E any sum due within 15 days of the invoice due date then, without prejudice to any other right or remedy available to 1E:
4.7.1at its sole discretion, 1E shall be entitled to suspend or terminate the provision of any Services immediately; and
4.7.2the Licensee will be liable to pay interest to 1E on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank Plc or its successor in title, accruing on a daily basis until payment is made, whether before or after any judgment. 1E reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4.8Any and all sums payable to 1E under this Agreement shall become due forthwith on termination of this Agreement for any reason.
4.9If any federal, state or local sales or use tax (or its equivalent) is legally due in relation to the Software, 1E shall separately bill such tax on its invoice. The Licensee shall pay 1E for such tax or, if such tax is not applicable to the Software, the Licensee shall provide appropriate exemption statements and any necessary information required by the applicable taxing authority. All other taxes, including but not limited to federal, state and local income taxes, franchise taxes, gross receipt taxes, federal, state and local sales and use taxes and property taxes shall be the responsibility of the party who incurs the tax liability.
4.10For the avoidance of doubt, if the Licensee is permitted to sub-license the Software, it shall be liable in respect of compliance with all relevant tax and export laws and applicable legisl ation arising from any and all sub-licensing.
4.11If 1E provides Consultancy Services then:
4.11.1the Consultancy Charges shall be payable by the Licensee within (30) thirty days of the date of 1E’s invoice;
4.11.2the Licensee shall reimburse all reasonable expenses which have been approved by the Licensee and incurred by 1E in the provision of the Consultancy Services within thirty (30) days of receipt of an invoice plus supporting documentation; and
4.11.3 1E shall, upon ninety (90) days’ written notice to the Licensee, be entitled to vary the Consultancy Charges with the agreement of the Licensee.
5 MAINTENANCE SERVICES
5.1With effect from the Commencement Date and subject to the Licensee paying any and all Subscription Fees as they become due, 1E shall provide the Maintenance Services subject to the terms and conditions of this Agreement. Maintenance Services shall comprise support in accordance with the provisions of this Agreement and the release of Updates as 1E may deem necessary in order to remedy Program Errors or increase functionality.
5.2 1E shall not be liable to provide Maintenance Services:
5.2.1in respect of Software that is not properly licensed pursuant to Clause 32.1 of this Agreement;
5.2.2if the Licensee is operating the Software on a Microsoft platform whereby the applicable version of ‘Microsoft Windows’ or ‘Microsoft SMS’ or ‘Microsoft ‘MOM” or ‘Microsoft System Center’ or any other relevant Microsoft platform is not, or ceases at any time to be, supported by Microsoft Corporation; or
5.2.3if the Licensee is not in conformity with the minimum technical requirements and prerequisites set out in the Software Specifications; or
5.2.4in the circumstances set out in clause 35.9.
5.3 Maintenance Services shall not include the diagnosis and rectification of any Program Error resulting from:
5.3.1the improper use, operation or neglect of either the Software or the equipment upon which the Software is installed or used;
5.3.2the failure by the Licensee to implement recommendations in respect of or solutions to Program Errors previously advised by 1E;
5.3.3any repair, adjustment, alteration, merger or modification of the Software by any person other than 1E without 1E’s prior consent;
5.3.4any breach by the Licensee of any of its obligations under any maintenance agreement in respect of the equipment upon which the Software is installed or used;
5.3.5 any failure, accident, neglect or misuse of equipment, software or media not supplied by 1E;
5.41E may at its own discretion upon request by the Licensee provide Maintenance Services notwithstanding that the Program Error results from any of the circumstances described in Clause 5.3
5.51E shall be entitled to levy Additional Charges, subject to prior written request by Licensee, for:
5.5.1 Maintenance Services provided pursuant to Clause 35.4;
5.5.2 the provision of any other services by 1E not specified in this Agreement; or
5.5.3any Maintenance Services provided outside of the Maintenance Hours.
5.61E shall provide Maintenance Services for New Releases (if any). Updates shall be provided pursuant to the Maintenance Services.
5.7The Licensee shall allow 1E all necessary access to the Licensee’s premises where this is required to provide the Maintenance Services under this Agreement. The Licensee shall take all reasonable precautions to ensure the health and safety of 1E’s employees or agents whilst on the Licensee’s premises. 1E and its employees shall to the extent that they have been so advised by the Licensee observe and comply with the Licensee’s reasonable health and safety requirements applicable to such premises.
5.8In the event of a disaster or catastrophe totally or partially disabling the Licensee’s computing or telecommunications capability, whether due to natural or man-made causes, 1E shall, at the Licensee’s expense, use reasonable endeavours to assist in the prompt restoration of such capability, including, but not limited to, the provision of emergency replacements of the Software, Maintenance Services and other technical assistance.
5.91E will provide maintenance services for the current version of Software, and the one preceding version of Software for up to twelve (12) months from the date of release of the current version of the Software.
5.10 1E may at its discretion cease to provide Maintenance Services in respect of any decommissioned Software (“Unsupported Software”) on not less than six (6) months written notice to the Licensee.
5.11 If 1E ceases to provide Maintenance Services, 1E shall use all reasonable endeavours to provide alternative software with the same or similar functionality as the Unsupported Software and such alternative software shall replace the Unsupported Software as the Software. If the provision of such alternative software results in an adjustment to the Licence Fee or Maintenance Fee 1E shall notify the Licensee of such adjustment. For the avoidance of doubt, no refunds or credits shall be payable by 1E if appropriate alternative software is provided.
5.12If 1E is unable to provide alternative software or New Releases pursuant to clauses 5.11, no Maintenance Fee shall be payable by the Licensee during the six (6) months’ notice period specified in clause 5.11, and any Maintenance Fees paid in advance by the Licensee for such Unsupported Software during the six (6) months’ notice period shall be refunded to the Licensee on a pro-rate basis.
6 CONSULTANCY SERVICES
6.1Clauses 6.2 to 6.10 and defined terms shall be applicable if 1E provides Consultancy Services to the Licensee.
6.2With effect from the Commencement Date and in consideration of the payment by the Licensee of the Charges, 1E shall provide the Consultancy Services.
6.3The Consultancy Services shall be specified in the SOW and shall continue for the period specified in the SOW unless or until terminated in accordance with Clause 46.
6.4The Licensee will assist 1E by providing 1E with access to such of its premises and facilities together with any information or assistance which 1E may reasonably require for the performance of the Consultancy Services.
6.5The Licensee shall ensure that there are in place all necessary licences and permissions needed to allow 1E and its employees, consultants and sub-contractors to access and use all premises, facilities, computer systems, materials, information and other items as may be appropriate for the performance of the Consultancy Services in connection with this Agreement.
6.6Each Party shall appoint an authorised representative (specified in the SOW) who shall have responsibility for the day to day operation of the Consultancy Services.
6.7 If the Licensee requests variation to the Consultancy Services, 1E shall consider such request and, if such request is acceptable to 1E, notify the Licensee in writing of its acceptance of the variation to the Consultancy Services and the Additional Charges payable by the Licensee.
6.8IN PERFORMING THE CONSULTANCY SERVICES 1E SHALL USE REASONABLE ENDEAVOURS NOT TO INTERFERE WITH THE OPERATIONS OF THE LICENSEE.
6.9 In providing the Consultancy Services 1E will exercise such level of skill, care and diligence as would be expected from an organisation involved in the provision of services of a nature similar to the Consultancy Services.
6.101E WARRANTS THAT THE CONSULTANCY SERVICES SHALL BE PERFORMED BY EMPLOYEES OR SUBCONTRACTORS OF SUITABLE QUALIFICATIONS, SKILLS AND EXPERIENCE.
7 PROPERTY AND CONFIDENTIALITY IN THE LICENSED SOFTWARE MATERIALS
7.1All Intellectual Property Rights in the Licensed Software Materials are the exclusive property of or are licensed to 1E.
7.2 The Licensee shall not:
7.2.1save as provided in Clause 38.8 below copy the whole or any part of the Licensed Software Materials;
7.2.2save as required to be permitted by law modify, merge or combine the whole or any part of the Licensed Software Materials with any other software or documentation;
7.2.3assign, license, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Software Materials nor use on behalf of or make available the same to any third party; or
7.2.4save as required to be permitted by law reverse engineer or decompile the whole or any part of the Licensed Software Material s from object code into source code or make any derivative works from or based upon the Licensed Software Materials or any part thereof.
7.3The Licensee shall:
7.3.1reproduce on any copy of the Licensed Software Materials 1E’s copyright and trade mark notices;
7.3.2 maintain an up-to-date record of the number of copies of the Licensed Software Materials and their location and upon request forthwith produce such record to 1E;
7.3.3only use the Software in accordance with the number of copies licensed to the Licensee (and as set out in the order form); and
7.3.4without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the Confidential Information (as defined in Clause 45.1 below) and Intellectual Property Rights of 1E in the Licensed Software Materials.
7.4 The Licensed Software Materials, and all technical information relating or preparatory thereto including without limitation modules, sub-modules, programs, samples, know-how, data, formulae, processes, designs, drawings, specifications, inventions, and information concerning the functionality, features, compatibility, errors, performance, speed of execution, architecture and business logic of or connected therewith, shall be deemed to be Confidential Information (as defined in Clause 45.1 below) of 1E.
7.5If any part of the equipment on which the Software is installed becomes temporarily inoperable then the Licensee may use the Software on other equipment until the original equipment becomes operable.
7.61E and its nominated representatives shall have the right to audit all the Software provided or installed under this Agreemen t and all back-up copies of the Software to ensure that the use of the Software by the Licensee is in compliance with the terms of this Agreement. Such audit shall take place no more than once every 12 months with effect from the Commencement Date and on not less than twenty-eight (28) days’ written notice to the Licensee. The Licensee shall provide all reasonable assistance to 1E as 1E may require in the performance of such audit.
7.7Upon the request of the Licensee 1E shall enter into an agreement with NCC Escrow International of Oxford House, Oxford Road, Manchester, M1 7ED (“NCC”) for the deposit of the source code of the Software. The terms of that agreement will be on the standard terms issued by NCC from time to time. The Licensee shall be responsible for any set up charges associated with establishing the escrow and for any subsequent charges necessary to maintain the escrow for the Licensee’s benefit.
7.8The Licensee shall not increase the number of End Points without 1E’s prior written consent and subject to paying the applicable Licence Fee as 1E shall notify to the Licensee. The Licence shall immediately notify 1E if the number of installed instances of the Software exceeds the number of End Points.
8 COPYING OF THE LICENSED SOFTWARE MATERIALS
8.1The Licensee shall be entitled to make a reasonable number of back-up copies of the Licensed Software Materials. Any such copy shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Licensed Software Materials.
9.1Subject to the exceptions set out in this Agreemen and the limitations upon its liability 1E warrants that:
9.1.1it has the right, power and authority to license the Licensed Software Materials upon the terms and conditions of this Agreement;
9.1.2the Software will for a period of ninety (90) days from the date it is delivered to the Licensee conform to the Software Specifications; and
9.1.3it will perform the Maintenance Services with reasonable skill and care.
9.2 The Licensee shall give notice to 1E as soon as it is reasonably able upon becoming aware of a breach of warranty. If no such notice is given within 30 days of the Licensee becoming aware of a breach of warranty, 1E shall not be liable for such breach of warranty.
9.31E shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described herein
9.4Without prejudice to the foregoing 1E does not warrant that the Use of the Software will meet the Licensee’s requirements or that the operation of the Software (including where in machine- readable form the Software Documentation) will be uninterrupted or error free.
9.5Subject to the foregoing all conditions, warranties, terms, representations (unless fraudulent) and undertakings express or implied, statutory or otherwise in respect of the Licensed Software Materials and/or Services are hereby excluded to the fullest extent permissible by law.
9.61E does not warrant that the Software will be compatible with the Licensee’s software, hardware or other equipment and shall not be liable for any damage caused to the Licensee’s software, hardware or other equipment as a result of using the Software. The Licensee is solely responsible for ensuring the Software is compatible with the Licensee’s systems and requirements and accepts that the Software was not designed to the Licensee’s inspanidual requirements.
9.71E warrants it complies with all material and applicable EC export laws and regulations relating to the provision of the Software and the Services under this Agreement.
10 INTELLECTUAL PROPERTY
10.1If 1E provides Consultancy Services, then during the term of this Agreement, 1E grants to the Licensee a non-transferable, non-exclusive licence to use any Materials delivered to the Licensee by 1E pursuant to the provision of the Consultancy Services which use shall be in a manner consistent with the terms and conditions of this Agreement and limited to the scope of usage set out in the SOW. For the avoidance of doubt, the Licensee shall not be entitled to grant to any other person the right to use the Materials or any Intellectual Property Rights.
10.2The Licensee agrees that should any right (including any moral right), title or interest in any of the Intellectual Property Rights or any goodwill arising out of the use thereof become vested in it or any of its employees, sub-contractors, consultants or agents (by operation of law or otherwise) then, to the extent that such rights have vested in the Licensee, it shall hold the same on trust for 1E and in any event the Licensee shall upon 1E’s request and without charge promptly and unconditionally take all such action and execute all such documents and/or procure th e taking of such action and the execution of such documents by any such employees, sub-contractors, consultants or agents as shall be necessary to assign such right, title or interest to 1E.
11INTELLECTUAL PROPERTY RIGHTS INDEMNITY
11.11E shall indemnify the Licensee against and defend any claim by a third party that the Software or Materials infringes that third party’s Intellectual Property Rights. The Licensee shall immediately notify 1E if it becomes aware of such a claim and provide such assistance to 1E as 1E may require in the defence or settlement of such claim at 1E’s expense. 1E shall have the sole right to conduct the defence of any such claim and all negotiations for its settlement.
11.2In the event that any claim referred to in Clause 42.1 is made or threatened, 1E may at its option and expense:
11.2.1procure for the Licensee the right to continue using the Software or Materials or infringing part thereof; or
11.2.2 modify or amend the Software or Materials or infringing part thereof so that it becomes non-infringing; or
11.2.3replace the Software or Materials or infringing thereof by other software of similar capability; or
11.2.4terminate this Agreement on notice and refund a proportion of the charges paid by the Licensee under this Agreement, on a pro rata basis over sixty (60) months from the date of this Agreement.
11.3The indemnity given under Clause 42.1 will not apply to the extent that any infringement has arisen directly from:
(a)any modifications to the Software or Materials which are not contemplated by this Agreement and which are made by the Licensee without 1E’s written consent or written authorisation; or
(b)the use of the Software or Materials in combination with any other materials, software, equipment or systems not supplied or approved by 1E and in a manner not contemplated by this Agreement.
11.4The Licensee shall be under an obligation to mitigate its losses in respect of liabilities being indemnified and shall, if requested by 1E, provide evidence to 1E of all steps that it has taken to do so.
12LIMITATION OF LIABILITY
12.1Except as otherwise provided in this Agreement, the total liability of 1E in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with this Agreement shall be limited in aggregate to the total fees paid and payable by the Licensee under this Agreement in the twelve months up to and including th e date of the claim.
12.2In no event shall 1E be liable to the Licensee for loss of revenue, loss of anticipated savings, loss of profits, loss of data, damage to goodwill, loss of reputation or for any type of indirect, economic or consequential loss or damage whatsoever or howsoever caused.
12.3Neither party excludes or limits liability to the other for death or personal injury caused by its negligence or for fraud.
12.4For the avoidance of doubt, the Licensee agrees and acknowledges on its own behalf and on behalf of all of members of the Licensee’s Group that nothing in this Agreement shall allow multiple recovery by the Licensee and members of the Licensee’s Group of the same loss. The Licensee shall be the only entity entitled to pursue remedies against 1E in the event of any breach of this Agreement by 1E.
12.5The Licensee undertakes to indemnify 1E against any loss suffered by 1E as a result of any act or omission of a member of the Licensee’s Group using the Software and/or Services which, if such act or omission was by the Licensee, would constitute a breach of any term of this Agreement.
13RISK IN THE LICENSED SOFTWARE MATERIALS
13.1Risk in the Licensed Software Materials will pass to the Licensee upon the delivery of the Licensed Software Materials to the Licensee. If subsequently the Licensed Software Materials are (in whole or in part) destroyed, damaged or lost 1E will upon written request replace the same.
14.1Without limitation to obligations of confidentiality in respect of the Licensed Software Materials under clause 7, neither Party shall use, copy, adapt, alter, disclose or part with possession of any information or data of the other Party which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is of a confidential nature (“Confidential Information”) without the prior written consent of the disclosing Party except as strictly necessary to perform its obligations or exercise its rights under this Agreement.
14.2The receiving Party undertakes not to disclose any Confidential Information of the disclosing Party to any third party other than employees, professional advisors and approved sub -contractors of the receiving Party on a “need to know” basis only and to whom disclosure is necessary for the proper performance of their duties under this Agreement.
14.3The foregoing obligations shall not apply to Confidential Information that:
14.3.1was known to the receiving Party prior to receipt from the disclosing Party; or
14.3.2is received from a third party without breach of any other confidentiality arrangements; or
14.3.3is or becomes public knowledge other than by breach of this Clause or is independently developed by or for the receiving Party; or
14.3.4is required to be disclosed by any applicable law or by order of any Court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that the receiving Party shall use all reasonable endeavours to give the other Party not less than two business days’ written notice of the disclosure.
14.4The Parties shall ensure that their respective employees, agents and sub-contractors comply with the provisions of this Clause and are bound by terms and conditions of use and non- disclosure at least as onerous as those contained in this Clause.
14.5The obligations in this Clause shall continue in force notwithstanding termination of this Agreement for any reason.
14.6If this Agreement is terminated, the receiving Party shall return or destroy at the request of the disclosing Party all Confidential Information of the disclosing Party.
15.1This Agreement may be terminated:
15.1.1forthwith by either Party upon giving written notice to the other if the other commits any material breach of this Agreement and which (in the case of a breach capable of remedy) shall not have been remedied within thirty (30) days of a written request to remedy the same (and non-payments of sums when due to 1E shall be a material breach);
15.1.2forthwith by either Party upon giving written notice to the other Party if the other Party makes or proposes to make any arrangement or composition with its creditors or has a receiver, administrative receiver, administrator, liquidator, manager or similar officer appointed in respect of all or any part of its assets or passes a resolution for winding-up (otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of the obligations of the relevant party under this Agreement), or (in the case of an inspanidual) commits any act of bankruptcy or dies, or (in the case of a partnership) is dissolved, or undergoes or suffers any analogous acts or proceedings under any foreign law;
15.1.3if the other Party shall commit any act of bankruptcy, shall have a receiving order made against it, shall make or negotiate for any composition or arrangement with or assignment for the benefit of its creditors or if the other party being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up or shall enter into any liquidation (other than for the purpose of reconstruction or amalgamation), shall call any meeting of its creditors, shall have a receiver of all or any of its undertakings or assets appointed, shall be deemed by virtue of section 123 of the Insolvency Act 1986 to be unable to pay its debts, or shall cease to carry on business; or
15.1.4forthwith by either Party upon giving written notice to the other if the other shall cease to carry on its business or substantially the whole of its business.
15.1.5In respect of the Maintenance Services only, by either Party on not less than sixty (60) days written notice to the other prior to the end of the current maintenance period, such notice not to be given effective to the expiry of the applicable Maintenance Term.
15.2Any termination of this Agreement (however occasioned) shall not operate so as to affect any accrued rights or liabilities of either Party.
15.3Within fourteen (14) days of the termination of this Agreement (howsoever and by whomsoever occasioned) the Licensee shall return or destroy (as 1E shall instruct) all copies of the Licensed Software Materials in its possession and a duly authorised officer of the Licensee shall certify in writing to 1E that the Licensee has complied with such obligation.
15.4If 1E has provided Consultancy Services then promptly after the date of termination or expiry of this Agreement, 1E will deliver a final invoice to the Licensee in respect of Consultancy Services rendered and the Licensee will pay the same in accordance with Clause 4.
16.1 Neither Party shall be liable to the other Party for any delay or non-performance of its obligations under this Agreement to the extent that its performance is interrupted or prevented by Force Majeure.
16.2Such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for ninety (90) days or more, the Party not affected may, at its option and if it is reasonable for it to do so, terminate this Agreement by giving fourteen (14) days written notice to the other Party.
17.1Any failure or delay on the part of either Party to exercise any power or right under this Agreement shall not operate as a waiver of it, nor shall any single or partial exercise of any such right or power preclude any other or further exercise of the right or power. Any of the rights and remedies of either Party under this Agreement may at any time be enforced separately or concurrently with any other rights and remedies, whether under this Agreement or arising by operation of law with the effect that the righ ts and remedies are cumulative and not exclusive of each other.
18.1Any notices required to be given under this Agreement shall be in writing and delivered personally or by first class post to the Parties at the address specified in this Agreement.
18.2 Any notice served by:
18.2.1personal delivery, shall be deemed served at the time of delivery;
18.2.2first class post, shall be deemed served at the start of the fifth business day after posting;
18.3Any Party may change any details of its address or facsimile number by notice in the manner described above.
19.1If any term or provision of this Agreement or its application to any Party or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of the term or provision to any other Party or circumstances, other than those as to which it is already invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The Parties shall negotiate in good faith to replace any invalid or unenforceable provisions by substitute provisions.
20.1This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and invalidates all prior oral or written communications, understandings, representations or warranties relating to the subject matter hereof.
20.2Each Party warrants to the other that it has not relied on any such communications, understandings, representations or warranties in entering into this Agreement.
20.3Notwithstanding anything contained herein to the contrary, the provisions of Clauses 34, 38, 43, 45 and any other Clauses which are intended to survive termination shall survive termination of the Agreement and shall continue in full force and effect thereafter.
21.1 Save as stated herein, neither Party shall be entitled to assign, sub-contract or otherwise transfer its rights or obligations under this Agreement whether in whole or in part without the other Party’s prior written consent (not to be unreasonably withheld), save that 1E shall be entitled to assign its rights hereunder (in whole or in part) to any member of 1E’s Group. 1E shall have the right to sub-contract its obligations under this Agreement provided that 1E shall remain primarily responsible to the Licensee for all the acts and omissions of the sub-contractors as fully as if they were the acts and omissions of 1E.
22THIRD PARTY RIGHTS
22.1 A person who is not a Party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
23.1Except as provided herein, the Parties agree to keep confidential the terms of this Agreement
23.21E shall be permitted to use the Licensees name and corporate logo in its marketing and promotional materials, including but not limited to 1E’s website.
23.3The Licensee agrees to provide publicity in the form of a testimonial and/or case study of the customers experience with 1E and 1E’s products, 1E may use said testimonials or case studies in full or part for promotional purposes across any media, including but not limited to print, electronic or broadcast media.
23.4Upon execution of this agreement 1E may at their sole option issue a press release confirming the relationship between the parties, the products purchased and/or the nature of the project being undertaken. Such a press release may or may not include a direct quote from the Licensee.
24.1No amendment to this Agreement whether oral or written shall be binding on either Party unless in writing and signed on behalf of the Parties.
25GOVERNING LAW AND JURISDICTION
25.1This Agreement shall be governed by and construed in accordance with English law.
25.2It is irrevocably agreed that the English courts shall have non-exclusive jurisdiction as regards any claim or matter arising out of or in connection with this Agreement.
26.1Where special conditions are included as part of this Agreement they shall apply equally with these, except that where there is any inconsistency between these conditions and the special conditions, the special conditions shall apply
27.1 The Parties agree that during the period in which this Agreement is in place and for 12 months after the date on which this Agreement is terminated or expires, neither party shall directly solicit, endeavour to entice away, employ or offer to employ any director, officer or employee of the other Party, whether or not that person would commit any breach of his or her contract of service in leaving his or her employment.
28HEALTH AND SAFETY
28.11E shall use reasonable endeavours to ensure that any of its employees or consultants who are involved in the provision of the Services shall comply with any health and safety policies and procedures of which the Licensee has made 1E fully aware.
28.2The Licensee shall ensure that all premises, facilities or other equipment which shall be made available to 1E under clause 2 or otherwise shall comply with all relevant health and safety legislation and any other applicable laws.
29.1Each party to this Agreement is an independent contractor. No provision of this Agreement or any act of the parties pursuant to this Agreement will be construed to express or imply a joint venture, partnership, or relationship other than vendor and purchaser of the Services. No employee, agent or other representative of either party will at any time be deemed to be under the control or authority of the other party, or under the joint control of both parties.
29.2 Neither party has the right to commit the other to any legally binding obligation or to hold the other party’s personnel (whether such personnel are employees, sub-contractors, consultants or otherwise) out as its personnel.
30COMPLIANCE WITH ANTI-CORRUPTION REQUIREMENTS
30.1THE PARTIES SHALL: COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, CODES AND SANCTIONS RELATING TO ANTI-BRIBERY AND ANTI-CORRUPTION INCLUDING THE UK BRIBERY ACT 2010 (RELEVANT REQUIREMENTS) AND SHALL NOT ENGAGE IN ANY ACTIVITY, PRACTICE OR CONDUCT WHICH WOULD CONSTITUTE AN OFFENCE UNDER THE BRIBERY ACT 2010 IF SUCH ACTIVITY, PRACTICE OR CONDUCT HAD BEEN CARRIED OUT IN THE UK;
30.2HAVE AND SHALL MAINTAIN IN PLACE THROUGHOUT THE TERM OF THIS AGREEMENT ITS OWN POLICIES AND PROCEDURES, INCLUDING ADEQUATE PROCEDURES UNDER THE BRIBERY ACT 2010, TO ENSURE COMPLIANCE WITH THE RELEVANT REQUIREMENTS, THE RELEVANT POLICIES, AND WILL ENFORCE THEM WHERE APPROPRIATE;
30.3ENSURE THAT ALL PERSONS ASSOCIATED WITH THE COMPANY OR OTHER PERSONS WHO ARE PERFORMING SERVICES OR PROVIDING PRODUCTS IN CONNECTION WITH THIS AGREEMENT COMPLY WITH THIS CLAUSE; AND
30.4UPON RECEIVING A WRITTEN REQUEST FROM 1E TO CERTIFY IN WRITING SIGNED BY AN OFFICER OF THE COMPANY, COMPLIANCE WITH THIS CLAUSE BY THE COMPANY AND ALL PERSONS ASSOCIATED WITH IT AND ALL OTHER PERSONS FOR WHOM THE COMPANY IS RESPONSIBLE. THE COMPANY SHALL PROVIDE SUCH SUPPORTING EVIDENCE OF COMPLIANCE AS 1E MAY REASONABLY REQUEST.
30.5 THE COMPANY SHALL INDEMNIFY 1E AGAINST ANY LOSSES, LIABILITIES, DAMAGES, COSTS (INCLUDING LEGAL FEES) AND EXPENSES INCURRED BY, OR AWARDED AGAINST, 1E AS A RESULT OF ANY BREACH OF THIS CLAUSE BY THE COMPANY OR ANY BREACH OF PROVISIONS EQUIVALENT TO THIS CLAUSE IN ANY SUBCONTRACT BY ANY SUBCONTRACTOR.
30.6BREACH OF THIS CLAUSE SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.