Exhibit - End User Licence
Your End User Licence Agreement is set out below in this Exhibit.
MIDVISION END USER LICENCE AGREEMENT (EULA)
This End User Licence Agreement along with all materials referenced herein (the “Agreement”) is made and entered into as of the Effective Date (as defined below) by and between MidVision Limited (“MidVision”) and the company represented by the individual accepting this Agreement on the company’s behalf or the individual if not acting for a company (“Licensee”) (each a “Party” and, collectively, the “Parties”).
This End User Licence Agreement covers any licensing of the Program, i.e. both RapidDeployTM Community Edition and RapidDeployTM.
MidVision provides the Program to the Licensee subject to the terms and conditions of this Agreement. This Agreement governs the Licensee’s use of the Program. The Program is licensed as a multi-product package and may include other products distributed with the Program ("Other MidVision Programs"). Licensee is authorized to install and use such Other MidVision Programs only in association with the licensed use of the Program under this Agreement and as set out in the PoE. The Other MidVision Programs may not be used for any other purpose. You are not authorized to transfer or remarket the Other MidVision Programs.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS.
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN ″ACCEPT″ BUTTON, OR USE THE PROGRAM; AND
- PROMPTLY RETURN THE UNUSED MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID. IF THE PROGRAM WAS DOWNLOADED, DESTROY ALL COPIES OF THE PROGRAM.
“Agreement” - this End User Licence Agreement and all schedules and amendments hereto, including the Licence Information, Software Support Agreement (where relevant) and the P. In the event of a conflict between the documents, the order of preference is Proof of Entitlement, followed by End User Licence Agreement and all schedules.
“Authorised Use”– the specified level at which Licensee is authorised to execute or run the Program. That level may be measured by number of users, service units, target environments or other level of use specified by MidVision as detailed in the PoE.
“Authorised User” - means a unit of measure by which the Program can be licensed. An Authorized User is a unique person who is given access to the Program.
“Community Edition” means the Free License version of the Program.
“Confidential Information” means this Agreement along with other proprietary or confidential information that each party may have access to or disclose during this Agreement providing it is marked as confidential by the disclosing party, and the content enabled by a user’s access to the Program, Intellectual Property Rights and any information that is marked as confidential or proprietary.
“Effective Date” – the date the Licensee accepted this Agreement which, unless accepted earlier, shall be the date the Software is first accessed by the Licensee.
“Eligible Product” – means commercially available MidVision Programs, Support, Trade-Ups and MidVision Subscription and Support Renewals.
“Free License” – means the Licensee may operate the Program for up to five (5) Nodes at no charge.
“Install” - means an installed copy of the Program on a physical or virtual disk made available to be executed on a computer. 2 of 9 Agreement No. v5 - 12072013
“Licence Information” (or “LI”) – a document that provides information and any additional terms specific to a Program. The LI can be found in the Program’s directory, by the use of a system command, or as a booklet included with the Program.
“Intellectual Property Rights” – means copyrights, registered designs, patents, trade marks, service marks, design rights (whether registered or unregistered), database rights applications for any of the above, rights to extract data, trade secrets, rights of confidence and all other similar rights recognised in any part of the world.
"Node" - means each individual component of the Licensee’s system - physical or virtual (i.e., server, workstation, IP router, Virtual Machine, or other device or component) that is installed, configured, updated and/or managed through the use of the Program.
”Program” – the product specified in the Proof of Entitlement, including the original and all whole or partial copies: (i) machine-readable instructions and data, (ii) components, files, and modules, (iii) audio-visual content (such as images, text, recordings, or pictures), and (iv) related licensed materials (such as keys and documentation).
”Proof of Entitlement” (or “PoE”) – evidence of Licensee’s Authorised Use when supported by a matching paid invoice or receipt (except in the case of the Community Edition). The PoE is also evidence of Licensee’s eligibility for any warranty, future update prices, if any, and potential special or promotional opportunities. If MidVision does not provide Licensee with a PoE, then MidVision may accept as the PoE the original paid sales receipt or other sales record from the party (either MidVision or its reseller) from whom Licensee obtained the Program, provided that it specifies the Program name and Authorised Use obtained. A PoE is required without exception for use of the Community Edition.
“Software Support Agreement” (or “SSA”) – means MidVision’s optional annual software support agreement that is not applicable with the Community Edition;
“Subscription” – means Licensee access to the most current commercially available version, release, or update of the Program for the period set out in the POE
“Support” – means access to MidVision’s electronic user guides to be found at www.midvision.com and/or subject to an SSA being in place, access to agreed electronic issue submission or call centre access and electronic, telephone or on site assistance to install and enable use of the software as set out in the POE for the period set out in the POE and in accordance with the terms of the MidVision Software Support Agreement.
“Trade-Up” – means trading up to the next major release or next generation of the Program, as opposed to implementing a fix or patch to the Program. A Trade-Up will require the Licensee to confirm acceptance to the latest version of the EULA.
“Trial Period” – means a specific number of calendar days, as set out in the Proof of Entitlement, from the Effective Date in which MidVision permit Licensee to trial the Program in accordance with Clause 3.2 below.
”Warranty Period” – means a period of one year from the Effective Date.
2. Agreement Structure
This Agreement is the complete agreement between Licensee and MidVision regarding the use of the Program and access to Support.. It replaces any prior oral or written communications between Licensee and MidVision concerning Licensee’s use of the Program. To the extent of any conflict, this Agreement and the PoE prevails over the terms of the Licence Information. Nothing in this Agreement shall have the effect of excluding or limiting liability for fraud.
3. Licence Grant
The Program and all intellectual property rights therein is owned by MidVision and is copyrighted and licensed to you, not sold. MidVision grants Licensee a non-exclusive, royalty-free, non-transferable, perpetual, revocable licence to: (i) use and access the Program and any modified or replacement versions as made available from time to time solely for the Authorised Use specified in the PoE; (ii) make and install copies to support such Authorised Use: and (iii) make a backup copy, all provided that:
a. Licensee has lawfully obtained the Program and complies with the terms of this Agreement;
b. Licensee does not execute the backup copy unless the Licensee cannot execute the backed-up Program. Further information on MidVision’s policy on back up use can be found at www.midvision.com;
c. Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;
d. Licensee ensures that anyone who uses the Program (accessed either locally or remotely): (i) does so only on Licensee’s behalf and (ii) complies with the terms of this Agreement;
e. Licensee will not use, copy, modify, make derivative works or distribute the Program other than as expressly permitted in this Agreement;
f. Licensee will not reverse assemble, reverse compile, otherwise translate, or reverse engineer the Program, except as expressly permitted by law without the possibility of contractual waiver; 3 of 9 Agreement No. v5 - 12072013
g. Licensee will not reverse engineer or access the Program in order to: (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, content or graphics of the Program or (iii) copy any ideas, features, functions or graphics of the Program (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties);
h. Licensee will not use any of the Program’s components, files, modules, audio-visual content, or related licensed materials separately from that Program;
i. except as expressly provided in this Agreement, Licensee shall not licence, sublicense, sell, resell, transfer, assign, distribute, rent, lease or otherwise commercially exploit or make available to any third party the Program in any way;
j. except as expressly provided in this Agreement, Licensee does not have any rights or ownership, either express or implied, in: (i) the Program; (ii) any source or object code generated by the Program; or (iii) any Intellectual Property Rights in the Program, any code generated by the Program, or any MidVision materials;
k. except as expressly provided in this Agreement, Licensee will not copy, reproduce, republish, upload, post, transmit, or distribute the Program, or any portion thereof, or facilitate or permit Licensee’s employees or third parties to do so;
l. Licensee will not attempt to access any systems, programs or data of MidVision that are not licensed under this Agreement, or otherwise made available by MidVision for public use; and
m. Licensee will not delete or in any manner alter any MidVision trade mark notices, disclaimers or other legends contained in the Program or appearing on any screens, documents, reports, numeric results or other materials obtained by Licensee through use of the Program.
Under the licence, Licensee may print out, or otherwise make, printed or electronic copies of the reports, numeric results and other information generated from Licensee’s access and use of the Program. In the course of using the Program, Licensee may process its own data or data provided by MidVision and retain the benefit of such processing but MidVision shall have no liability whatsoever for any errors or defects therein, or for any impact they may have upon Licensee or Licensee’s business. This licence applies to each copy of the Program that Licensee makes.
4. Calculating the level of Authorised Use for licensing
It is the Licensee’s responsibility to ensure that they have purchased the appropriate entitlements and license for the level of Authorised Use. The method of Authorised Use and entitlement is confirmed within the POE
5. Program Pricing
In order to use the Program the Licensee must pay an up-front, one time license fee and ongoing, optional, annual Subscription and Support charges governed under the relevant parts of the Agreement, except in the case of the Community Edition which is provided as a Free License subject to use as set out in the PoE.
Subject to receiving payment (where required), MidVision grants the Licensee a non-exclusive royalty free, non-transferable, perpetual, revocable license to indefinitely use the specific version/release of the Program obtained when the Licensee lawfully obtains it up to the level of Authorised Use specified in the PoE. MidVision licenses the Program for use as long as the Licensee complies with the terms of the Agreement.
In addition, the Licensee is entitled to receive such MidVision Subscription and Support for such a period, as set out in the PoE. At the end of each period of coverage detailed in the PoE, MidVision Subscription and Support is renewable for another 12 months or longer, referred to as "MidVision Subscription and Support Renewal". If the MidVision Subscription and Support is not renewed under the SSA, the Licensee will no longer receive the benefits of MidVision Subscription and Support, but Licensee may still use the Program according to the remaining terms of the Agreement.
While MidVision Subscription and Support is in effect for the Program license:
- MidVision will make available to the Licensee and authorise the Licensee to use the most current commercially available version, release, or update, should any be made available.
- MidVision Support includes online support guides for code-related, installation and usage questions Such Support for a particular version or release of the Program is available only until MidVision withdraws Support for that Program’s version or release. When Support is withdrawn, the Licensee must upgrade to a supported version or release of the Program in order to continue to receive Support.
- MidVision provides assistance via online and/or telephone submission and online and/or telephone and/or onsite resolution assistance. These are confirmed within the Licensee’s POE and MidVision Software Support Handbook.
- MidVision may request that the Licensee allows it to remotely access the Licensee’s system to assist the Licensee in isolating the Program problem cause. The Licensee remains responsible for adequately protecting their own system and all data contained in it whenever MidVision remotely accesses it with the Licensee’s permission.
Note MidVision Support for a particular version or release of the Program is not indefinitely available and MidVision may withdraw Support for that Program version or release, subject to meeting any contractually agreed commitments as set out in the PoE. When Support is withdrawn, the Licensee must upgrade to a supported version or release of the Program in order to continue to receive Support. Full terms and conditions of any Support provided by MidVision are set out in the Software Support Agreement as referred to in the PoE. See also the MidVision Software Support Lifecycle policy. 4 of 9 Agreement No. v5 - 12072013
6.1 Trade-ups, Updates, Fixes, and Patches
If the Program is replaced by a Trade-Up Program, the replaced Program’s licence is promptly terminated and a new License is issued for the Trade-Up.
6.1.2 Updates, Fixes, and Patches
This Agreement does not entitle Licensee to receive updates, fixes or patches to the Program unless Licensee purchases a support option with the Program, although updates, fixes or patches may be provided to Licensee at the discretion of MidVision. When Licensee receives an update, fix, or patch to a Program, Licensee accepts any additional or different terms that are applicable to such update, fix, or patch that are specified in its LI. If no additional or different terms are provided, then the update, fix, or patch is subject solely to this Agreement. If the Program is replaced by an update, Licensee agrees to promptly discontinue use of the replaced Program.
6.2 Trial Period
MidVision may permit Licensee to trial the Program for a Trial Period if designated in the PoE. If Licensee elects to use the Program for the Trial Period and does not purchase a License or Subscription before the end of that Trial Period, this Agreement will terminate at the end of such Trial Period.
6.3 Term and Termination
This Agreement will commence on the Effective Date and remain in force and effective until terminated. MidVision may immediately terminate Licensee’s licence if Licensee fails to comply with any material provision of this Agreement or otherwise materially breaches this Agreement. This Agreement may also be terminated immediately by either Party on giving notice in writing to the other if:
a. the other Party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction);
b. a court of competent jurisdiction shall make an order to that effect;
c. the other Party shall become subject to an administration order;
d. the other Party shall enter into any voluntary arrangement with its creditors;
e. the other Party shall cease or threaten to cease to carry on business;
f. the other Party breaches any material provision of this Agreement which is not capable of remedy.
6.4 Effect of Termination
If the licence is terminated for any reason by either Party, Licensee agrees to promptly discontinue use of and destroy all of Licensee’s copies of the Program. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination. On termination of this Agreement, all rights (including the licence granted to Licensee under clause 3 under this Agreement will cease. Termination will have no effect on Licensee’s obligation to pay for any services rendered prior to termination. The terms of clauses 1 (Interpretation), 6.3 (Term and Termination), 12 (Limitation of Liability), 15 (Intellectual Property Rights), 17 (Confidentiality), 18 (General) shall survive any expiration or termination of this Agreement.
Charges are based on compliance with the Authorised Use obtained, which is specified in the PoE. MidVision does not give credits or refunds for charges already due or paid, except as specified elsewhere in this Agreement. If Licensee wishes to increase its Authorised Use, Licensee must notify MidVision or an authorised MidVision reseller in advance and pay any applicable charges.
If any authority imposes on the Program a duty, tax, levy, or fee, excluding those based on MidVision’s net income, then Licensee agrees to pay that amount, as specified in an invoice, or supply exemption documentation. Licensee is responsible for any personal property taxes for the Program from the date that Licensee obtains it. If any authority imposes a customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of the Program outside the country in which the original Licensee was granted the license, then Licensee agrees that it is responsible for, and will pay, any amount imposed.
9. Program Transfer
Licensee may not transfer the Program or any of the Licensee’s licence rights and obligations to another party except with the express written permission of MidVision. If the licence is terminated for any reason by either Party, Licensee is prohibited from transferring the Program to another party. Licensee may not transfer a portion of: (i) the Program or (ii) the Program’s Authorised Use. If the Licensee has obtained agreement from MidVision to transfer the License, the Licensee must also transfer a hard copy of this Agreement, including the LI and PoE. Immediately after the transfer, Licensee’s licence terminates.
10. Warranty and Exclusions
Except in the case of the Community Edition (where there shall be no warranty), MidVision warrants to Licensee for the Warranty Period that the Program, when used in its specified operating environment, will conform to its specifications. The Program’s specifications, and specified operating environment information, can be found in documentation accompanying the Program (such as a read-me file) or other information published by MidVision (such as an announcement letter). Licensee agrees that such documentation and other Program content may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation. The warranty applies only to the unmodified portion of the Program. Licensee is responsible for the results obtained from the use of the Program. During the Warranty Period, MidVision provides Licensee with access to MidVision databases containing information on known Program defects, defect corrections, restrictions, and bypasses at no additional charge. 5 of 9 Agreement No. v5 - 12072013
Consult the MidVision Software Support Handbook for further information at www.midvision.com. If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved with information available in the MidVision databases, Licensee may notify MidVision in writing and MidVision will correct or replace the Program (at MidVision’s option). Any items provided as replacement under the terms of this warranty will be warranted for the remainder of the original Warranty Period.
IN ADDITION TO THE MATTERS CONTAINED ABOVE:
a. THE PROGRAM IS PROVIDED "AS-IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIDVISION DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND OTHER TERMS OF ANY KIND, EXPRESS (UNLESS SET OUT HEREIN) OR IMPLIED, REGARDING THE PROGRAM OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY;
b. MIDVISION DOES NOT WARRANT THAT THE PROGRAM IS OR WILL BE ACCURATE, FREE FROM DEFECTS, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS;
c. LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS; MIDVISION DISCLAIMS AND MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE PORTFOLIOS, SECURITIES, REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY LICENSEE FROM ACCESSING AND/OR USING THE PROGRAM OR OTHERWISE RESULTING FROM THIS AGREEMENT; AND
d. LICENSEE SHALL USE THE PROGRAM AT ITS OWN RISK AND IN NO EVENT SHALL MIDVISION BE LIABLE TO LICENSEE FOR ANY LOSS OR DAMAGE OF ANY KIND (EXCEPT PERSONAL INJURY OR DEATH RESULTING FROM MIDVISION’S NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION AND ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW) ARISING FROM LICENSEE’S USE OF OR INABILITY TO USE THE PROGRAM OR FROM FAULTS OR DEFECTS IN THE PROGRAM WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE.
IN THE CASE OF THE COMMUNITY EDITION, THE ENTIRE RISK AS TO THE RESULTS OF USE OF THE SOFTWARE RESTS WITH LICENSEE. TO THE EXTENT PERMITTED BY LAW, NO REPRESENTATIONS OR WARRANTIES ARE GIVEN AND ALL EXPRESS AND IMPLIED REPRESENTATIONS, WARRANTIES, AND CONDITIONS ARE HEREBY EXCLUDED.
THE EXPRESS TERMS OF THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES, CONDITIONS, UNDERTAKINGS, TERMS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, TRADE USAGE, COURSE OF DEALING OR OTHERWISE ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
LICENSEE AGREES TO DEFEND, INDEMNIFY AND HOLD MIDVISION HARMLESS FROM ANY LOSSES, LIABILITIES, DAMAGES, ACTIONS, CLAIMS OR EXPENSES (INCLUDING LEGAL FEES AND COURT COSTS) ARISING OR RESULTING FROM LICENSEE’S BREACH OF ANY TERM OF THIS AGREEMENT OR CAUSED BY ACTS OR OMISSIONS PERFORMED BY LICENSEE.
11. Licensee Data and Databases
To assist Licensee in isolating the cause of a problem with the Program, and subject to an SSA being in place, MidVision may request that Licensee: (i) allow MidVision to remotely access Licensee’s system or (ii) send Licensee information or system data to MidVision. However, MidVision is not obligated to provide such assistance unless MidVision and Licensee enter a separate written agreement under which MidVision agrees to provide to Licensee that type of technical support, which is beyond MidVision’s warranty obligations in this Agreement. In any event, MidVision uses information about errors and problems to improve its products and services, and assist with its provision of related support offerings. For these purposes, MidVision may use MidVision entities and subcontractors (including in one or more countries other than the one in which Licensee is located), and Licensee authorises MidVision to do so. Licensee remains responsible for: (i) any data and the content of any database Licensee makes available to MidVision, (ii) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally identifiable data), and (iii) backup and recovery of any database and any stored data. Licensee will not send or provide MidVision access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that MidVision may incur relating to any such information mistakenly provided to MidVision or the loss or disclosure of such information by MidVision, including those arising out of any third party claims.
12. Limitation of Liability
The limitations and exclusions in this Section 12 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver. Nothing in this Agreement shall limit or exclude the Supplier's liability for:
a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b. fraud or fraudulent misrepresentation;
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
d. breach of the terms implied by section 15 of the Sale of Goods Act 1979 (title and quiet possession); or
e. defective products under the Consumer Protection Act 1987.
12.1 Items for Which MidVision May Be Liable
Regardless of the basis on which Licensee is entitled to claim damages from MidVision and except as expressly required by law without the possibility of contractual waiver, MidVision’s entire liability under this Agreement will not exceed the amount of any direct damages, to the extent actually suffered by Licensee as an immediate and direct consequence of the default, up to the lesser of: (i) £100,000 UK 6 of 9 Agreement No. v5 - 12072013
Pounds Sterling or (ii) 125% of the charges (if the Program is subject to fixed term charges, up to 12 months’ charges) for the Program that is the subject of the claim.
In the case of the Community Edition, MidVision’s entire liability under this Agreement will not exceed the amount of any direct damages, to the extent actually suffered by Licensee as an immediate and direct consequence of the default, up to £100. The Licensee's only other remedy shall be to cease using the Product.
12.2 Items for Which MidVision Is Not Liable
UNDER NO CIRCUMSTANCES IS MIDVISION, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
a. LOSS OF, OR DAMAGE TO, DATA;
b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR CONSEQUENTIAL DAMAGES; OR
c. WASTED MANAGEMENT TIME OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
13. Compliance Verification
For purposes of this Section 13 (Compliance Verification), ″EULA Program Terms″ means: (i) this Agreement and applicable amendments and transaction documents provided by MidVision and (ii) MidVision software policies that may be found at the MidVision website (www.midvision.com) . The rights and obligations set forth in this Section 13 remain in effect during the period the Program is licensed to Licensee, and for two years thereafter.
13.1 Verification Process
Licensee agrees to create, retain, and subject to MidVision’s auditors (if applicable) entering into a confidentiality agreement with the Licensee (in a form that is acceptable to the Licensee), provide to MidVision and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee’s use of all Programs is in compliance with the EULA Terms, including, without limitation, all of MidVision’s applicable licensing and pricing qualification terms. Licensee is responsible for: (i) ensuring that it does not exceed its Authorised Use, and (ii) remaining in compliance with EULA Terms. Upon reasonable notice, MidVision may verify Licensee’s compliance with EULA Terms at all sites and for all environments in which Licensee uses (for any purpose) Programs subject to EULA Terms. Such verification will be conducted in a manner that minimises disruption to Licensee’s business, and may be conducted on Licensee’s premises, during normal business hours. MidVision may use an independent auditor to assist with such verification, provided MidVision has a written confidentiality agreement in place with such auditor.
MidVision will notify Licensee in writing if any such verification indicates that Licensee has used any Program in excess of its Authorised Use or is otherwise not in compliance with the EULA Terms. Licensee agrees to promptly pay directly to MidVision the charges that MidVision specifies in an invoice for: (i) any such excess use, (ii) support for such excess use for the lesser of the duration of such excess use or two years, and (iii) any additional related charges and other related liabilities determined as a result of such verification or incurred in order to prove excess use or non-compliance. The charges payable will be based on MidVision’s latest list price for the usage of the Program or an Enterprise license if usage has not been provided despite request by MidVision
14. Third Party Notices
The Program may include third party code that MidVision, not the third party, licenses to Licensee under this Agreement. Notices, if any, for the third party code (″Third Party Notices″) are included for Licensee’s information only. These notices can be found in the Program’s NOTICES file(s). Information on how to obtain source code for certain third party code can be found in the Third Party Notices. If in the Third Party Notices MidVision identifies third party code as ″Modifiable Third Party Code,″ MidVision authorises Licensee to: (i) modify the Modifiable Third Party Code and (ii) reverse engineer the Program modules that directly interface with the Modifiable Third Party Code provided that it is only for the purpose of debugging Licensee’s modifications to such third party code. MidVision’s service and support obligations, if any, apply only to the unmodified Program.
15. Intellectual Property Rights
MIDVISION OR ITS LICENSORS OWN ALL RIGHTS, TITLE AND INTERESTS IN THE PROGRAM INCLUDING TRADE SECRETS, AND INTELLECTUAL PROPERTY RIGHTS, AND THE PROGRAM SHALL REMAIN THE SOLE AND EXCLUSIVE PROPERTY OF MIDVISION OR ITS LICENSORS. EXCEPT AS PROVIDED IN CLAUSE 3 OF THIS AGREEMENT, LICENSEE HAS NO, AND IS NOT GRANTED, ANY RIGHT, TITLE, INTEREST OR LICENCE IN THE PROGRAM.
LICENSEE GRANTS MIDVISION A NON-EXCLUSIVE, PERPETUAL, IRREVOCABLE, WORLDWIDE, ROYALTY-FREE LICENCE WITH THE RIGHT TO SUBLICENSE, USE, COPY, TRANSMIT, DISTRIBUTE, CREATE DERIVATIVE WORKS OF, DISPLAY AND PERFORM THE SAME IN RESPECT OF ANY MATERIALS OR OTHER INFORMATION (INCLUDING, WITHOUT LIMITATION, IDEAS, CONCEPTS OR TECHNIQUES FOR NEW OR IMPROVED SERVICES AND PRODUCTS) SUBMITTED BY LICENSEE, WHETHER AS FEEDBACK, DATA, QUESTIONS, COMMENTS, OR SUGGESTIONS.
LICENSEE AGREES AND UNDERSTANDS THAT ANY DATA AND META DATA COLLECTED BY MIDVISION (THE “STATISTICS”) SHALL REMAIN THE SOLE AND EXCLUSIVE PROPERTY OF MIDVISION AND LICENSEE GRANTS MIDVISION A NON-EXCLUSIVE, PERPETUAL, IRREVOCABLE, WORLDWIDE, ROYALTY-FREE LICENCE WITH THE RIGHT TO SUBLICENSE, USE, COPY, TRANSMIT, DISTRIBUTE, CREATE DERIVATIVE WORKS OF, AND DISPLAY THE STATISTICS.
THIS AGREEMENT DOES NOT GRANT TO ANY PARTY A LICENCE TO USE ANY TRADE MARK, TRADE NAME, OR LOGO OF THE OTHER PARTY, AND EACH PARTY RECOGNISES THAT THE TRADE MARKS, TRADE NAMES AND LOGOS OF THE OTHER PARTY REPRESENT VALUABLE ASSETS OF THAT PARTY AND THAT SUBSTANTIAL RECOGNITION AND GOODWILL ARE ASSOCIATED WITH SUCH TRADE MARKS, TRADE NAMES, AND LOGOS. EACH PARTY HEREBY AGREES THAT IT SHALL NOT 7 of 9 Agreement No. v5 - 12072013
USE OR PERMIT ANY THIRD PARTY TO USE, AT ANY TIME, THE OTHER PARTY’S TRADE MARKS, TRADE NAMES, OR LOGOS EXCEPT FOR DISCLOSURE WITHIN FOR EXAMPLE MARKETING MATERIAL, TO CONFIRM EXISTENCE OF THE SUPPLIER/LICENSEE RELATIONSHIP BETWEEN THE PARTIES WITHOUT DISCLOSURE OF FURTHER COMMERCIAL DETAILS UNLESS SEPARATELY AGREED BETWEEN THE PARTIES. Either Party may request cessation of use of their trade mark, trade name or logo by the other Party by written notice as set out in clause 18.19 except that in order for MidVision to provide its services to the Licensee it cannot be restricted from their use in internal communication or in communication with its service partners for the sole purpose of meeting its commitments to the Licensee. If this cessation request has been made, the parties agree that it shall be formalised within the narrative of the POE or updated POE to be binding on the parties.
16. Hardware and Software Requirements
Licensee is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services not owned or operated by or on behalf of MidVision, that allow Licensee to access and use the Program, and for all expenses relating thereto (plus any applicable taxes). Licensee agrees to access and use the Program in accordance with any and all operating instructions or procedures that may be issued by MidVision, and amended by MidVision from time to time.
17.1 Each of the Parties hereby undertakes with the other to keep confidential all Confidential Information and make all relevant employees, agents and sub-contractors aware of the provisions of this clause 17.
The provisions of clause 17.1 shall not apply to the whole or any part of the Confidential Information to the extent that it is:
a. trivial or obvious;
b. already in the other’s possession without the duty of confidentiality on the date of its disclosure;
c. in the public domain other than as a result of breach of this clause 17; and
d. to the extent that disclosure of such information may be required by any governmental agency, law, court of competent jurisdiction or another appropriate regulatory body but the Party required to make a disclosure shall (to the extent permissible by law) use all reasonable endeavours to notify the other Party of such requirement prior to making the disclosure.
18.1 Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
18.2 For Programs MidVision provides to Licensee in tangible form, MidVision fulfils its shipping and delivery obligations upon the delivery of such Programs to the MidVision-designated carrier, unless otherwise agreed to in writing by Licensee and MidVision.
18.3 If any provision of this Agreement is held by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable for any reason, then such part will be severed from the remainder of this Agreement, and the remaining provisions of this Agreement will continue to be valid and enforceable to the fullest extent permitted by law.
18.4 Licensee agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
18.5 Other than in the case of items for which immediate termination is allowed, each Party will allow the other reasonable opportunity (no less than thirty days, unless stated otherwise) to comply before it claims that the other has not met its obligations under this Agreement. The Parties will attempt in good faith to resolve all disputes, disagreements, or claims between the Parties relating to this Agreement.
18.6 Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: (i) neither Party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of action arose; and (ii) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
18.7 Force Majeure. Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of terrorism, war, riot, embargoes, third party equipment failures, or telecommunications failures, acts of civil or military authorities, national disasters, strikes and the like.
18.8 No right or cause of action for any third party is created by this Agreement, nor is MidVision responsible for any third party claims against Licensee, except as permitted in Subsection 12.1 (Items for Which MidVision May Be Liable) above for bodily injury (including death) or damage to real or tangible personal property for which MidVision is legally liable to that third party.
18.9 In entering into this Agreement, neither Party is relying on any representation not specified in this Agreement, including but not limited to any representation concerning: (i) the performance or function of the Program, other than as expressly warranted in Section 8 (Warranty and Exclusions) above; (ii) the experiences or recommendations of other Parties; or (iii) any results or savings that Licensee may achieve.
18.10 MidVision has signed agreements with certain organizations (called ″MidVision Business Partners″) to promote, market, and support certain Programs. MidVision Business Partners remain independent and separate from MidVision. MidVision is not responsible for the actions or statements of MidVision Business Partners or obligations they have to Licensee. 8 of 9 Agreement No. v5 - 12072013
18.11 The licence and intellectual property indemnification terms of Licensee’s other agreements with MidVision (such as the MidVision Customer Agreement) do not apply to Program licenses granted under this Agreement..
18.12 No delay on the part of either Party in exercising any right or remedy under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise of any right or remedy under this Agreement preclude any other or further exercise of such right or remedy.
18.13 This Agreement and Licensee’s rights, duties and obligations hereunder are personal to Licensee and Licensee may not assign its rights, delegate its duties or subcontract its rights without MidVision’s prior written consent in MidVision’s sole discretion. MidVision may assign, transfer, delegate or grant all or any part of its rights pursuant to this Agreement to any person or entity. The Parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
18.13A Where the Licensee intends to assign any of its rights under this Agreement, it must first notify MidVision in writing giving a reasonable period of notice and confirming (i) the identity of the proposed assignee; and (ii) the assignee's registered address.
18.13B Following any assignment by the Licensee, the Licensee shall return all copies of the Product and all supporting documentation to MidVision, and shall allow MidVision (or its representatives) such access as MidVision (or its representative) requires to the Licensee's premises and systems to allow it to confirm that the Licensee has complied in all respects with this clause 18.13B.
18.13C Upon request following an assignment, the Licensee will enter into an agreement guaranteeing the transferee's compliance with the terms of the Agreement and indemnifying MidVision against all losses resulting from a breach of the Agreement by that transferee.
18.13D Following an assignment, the transferee will be bound by all terms of this Agreement as if it were the Licensee and shall, upon MidVision's request, execute a novation of this Agreement on substantially the same terms.
18.14 Data Protection. Both Parties warrant that they will duly observe all their obligations under the Data Protection Act 1998 (as amended) which arise in connection with this Agreement.
18.16 Entire Agreement. This document is the entire Agreement between the Parties and supersedes all other agreements or arrangements, whether written or oral, express or implied (except in the case of fraud). Each Party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in the Agreement (and except for fraudulent representations) and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. Both Parties acknowledge and agree that the allocation of risk and liability contained in this Agreement is reasonable in all the circumstances having regard to all relevant factors including the nature of the services and the ability of both Parties to rely on their own respective insurance arrangements and other resources to bear or recover any loss or damage incurred for which Licensee are not liable.
18.17 Injunctive Relief. Each Party acknowledges that a violation of clauses 1 (Interpretation), 3 (Licence Grant),and 15 (Intellectual Property Rights) of this Agreement would cause irreparable harm to the other Party for which damages alone would not be an adequate remedy. Each Party therefore agrees that, without prejudice to any other remedies available, the aggrieved Party shall be entitled to seek the granting of equitable relief (including without limitation injunctive relief) concerning the actual or threatened breach of clauses 1, 3 and 15. The prevailing Party shall be entitled to recover all costs and expenses, including reasonable legal fees incurred because of any such legal action.
18.18 Contracts (Rights of Third Parties) Act 1999. This Agreement is enforceable only by Licensee and MidVision and nothing in this Agreement confers or is to be deemed to confer a benefit on a person not a party to this Agreement. It is hereby agreed between the Parties that the Contracts (Rights of Third Party) Act 1999 shall not apply to this Agreement.
18.19 Notices. All general questions or comments concerning this Agreement should be discussed with your normal MidVision relationship manager although formal notices shall be submitted to MidVision by Licensee via recorded special delivery to MidVision’s trading address detailed in the PoE. Such notice shall be deemed to have been given when received and signed for by MidVision. All notices or changes to be given under this Agreement to Licensee shall be submitted by MidVision via email to Licensee, such notice shall be deemed to have been given by MidVision upon the expiration of 12 hours after the email has been sent. MidVision may issue changes to this Agreement and the Licensee is advised to review the MidVision website for updates to this Agreement prior to signing support renewals or additional license agreements.
18.20 Audit. Licensee shall permit MidVision or an independent certified accountant appointed by MidVision subject to the independent certified accountant signing a confidentiality agreement access on 30 days written notice to Licensee’s premises and Licensee’s books of account and records in relation to the Program and compliance with this Agreement at any time during normal business hours for the purpose of inspecting, auditing, verifying or monitoring the manner and performance of Licensee’s obligations under this Agreement including without limitation the payment of all applicable licence fees. MidVision shall not be able to exercise this right more than once in each calendar year. If an audit reveals that Licensee has underpaid fees to MidVision, Licensee shall be invoiced for and shall pay to MidVision within 30 days of the date of invoice an amount equal to the shortfall between the fees due and those paid by Licensee. If the amount of the underpayment exceeds 5% of the fees due or the audit reveals a violation of any licence restrictions pursuant to this End-User Licence Agreement then, without prejudice to MidVision’s other rights and remedies, Licensee shall also pay MidVision’s reasonable costs of conducting the audit. 9 of 9 Agreement No. v5 - 12072013
19. Governing Law and Jurisdiction
19.1 Governing Law
Both Parties agree to the application of the laws of England and Wales to govern, interpret, and enforce all of Licensee’s and MidVision’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of any specific country law principles in which the Licensee operates. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
All rights, duties, and obligations are subject to the jurisdiction of the courts of England and Wales.