Software License Agreement
Intellegens Limited, a company organised under the laws of England and Wales, having its registered office at Eagle Labs, Chesterton Road, Cambridge, CB4 3A, United Kingdom (“Intellegens”) offers this website, including all information, tools and services available from this website to you, the user (the “Licensee”), conditioned upon your acceptance of all terms, conditions, policies and notices stated here. By using Intellegens’ website and / or purchasing any of Intellegens’ offerings, you agree to be bound by the following terms and conditions (the “Agreement”) unless a fully executed licence agreement has been agreed with Intellegens. By accessing or using any part of Intellegens’ website, you agree to be bound by the provisions of this Agreement. If you do not agree to this Agreement, then you may not access this website or use any services available via Intellegens’ website. Intellegens reserves the right to update, change or replace any part of this website, its services and this Agreement at any time. It is your responsibility to review this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of such changes. A violation of this Agreement by you may result in an immediate termination of Intellegens’ services provided via the website.
1. License Grant
1.1 Subject to the terms and conditions of this Agreement, Intellegens hereby grants Licensee non-exclusive, non-transferable and non-sublicensable licence to use the Product in object code only in a test and production environment as required.
1.2 Licensee is expressly prohibited from any kind of modification, decompilation, translation, disassembling or reverse engineering of the Product as well as from copying the Product onto any public or distributed network.
1.3 Licensee acknowledges that the Product may contain certain elements supplied by Intellegens’ third party suppliers, including open source software. Open source software components within the Product are supplied under such third party suppliers’ licences.
2. Delivery, Hosting and Support
2.1 Delivery is deemed to have taken place upon Intellegens providing Licensee with credentials to (i) access the Product via a dedicated managed service (the “Cloud Hosted Solution”); (ii) login to the subscription access to the centrally hosted Product, i.e. software as a services (“SaaS”); or (iii) access the Product via electronic download.
2.2 The Cloud Hosted Solution represents a platform-as-a-service provided by Intellegens, which Licensee may access and utilise under this Agreement. In such circumstances Intellegens shall (i) make available for remote access and host the Cloud Hosted Solution on Intellegens’ systems, to Licensee for access via Intellegens’ website, and (ii) store Licensee’s data input and output. Intellegens retains all right, title and interest in and to the Cloud Hosted Solution and SaaS, and this Agreement does not convey any ownership therein to Licensee.
2.3 Except as expressly authorised in this Agreement, Licensee may not without Intellegens’ prior written consent (i) make the Cloud Hosted Solution or SaaS as a whole or in part available to, or use the Cloud Hosted Solution or SaaS for the benefit of, anyone other than Licensee, (ii) copy, modify or create derivative works of the Cloud Hosted Solution or SaaS, (iii) reverse engineer, decompile, adapt, or otherwise attempt to gain unauthorised access to the Cloud Hosted Solution, (iv) access the Cloud Hosted Solution or SaaS to build or provide a competitive product or service, (v) upload, post, transmit or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software, hardware or other equipment, or (vi) upload, post, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights.
2.4 Intellegens provides support during weekdays, excluding public holidays in England, from 9am to 5pm GMT / BST via email and telephone. Where possible, efforts will be made to provide support outside these hours at Intellegens‘ discretion.
3.1 In consideration for the licence grant under Clause 1 of this Agreement, Licensee agrees to pay Intellegens the Licence Fee as quoted by Intellegens in writing separately from this Agreement.
3.2 The Licence Fee is invoiced by Intellegens annually in advance, with the first invoice due upon Delivery of the Product. Payment is due upon Delivery of the Product and is payable net thirty (30) days from Licensee’s receipt of invoice by e-mail unless otherwise agreed in writing.
3.3 The Licence Fee and any other amounts payable by the Licensee under this Agreement are exclusive of any and all applicable foreign and domestic VAT, other taxes, duties and similar. Any applicable taxes and duties are payable in addition to the Licence Fee.
3.4 Interest for late payment at the rate of one per cent (1%) per month may be charged by Intellegens following a written reminder to Licensee that payment is overdue.
4. Licensee’s Obligations
4.1 Licensee may permit its contractors or agents to use or operate the Product for and on behalf of Licensee within the scope of the licence as specified herein, provided that Licensee ensures that all such contractors and agents operate the Product for Licensee only and do not share or disclose the Product with any third party, or use it other than in accordance with the terms of this Agreement. Licensee shall remain liable for compliance with all terms and conditions of this Agreement at all times regardless who uses, accesses or operates the Product on its behalf.
4.2 Licensee acknowledges and accepts that ownership to the Product and all intellectual property rights vested in the Product remain with Intellegens and its third party suppliers at all times. Licensee is strictly prohibited from distributing, selling, sub-licensing, letting, trading or exposing for sale the Product to any third party.
4.3 No copies of the Product or documentation may be made other than as expressly approved by Intellegens in writing.
4.4 No changes to the Product or its content may be made by Licensee, and Licensee is expressly prohibited from attempting to correct errors in the Product. Prior to Licensee making use of any statutory right to decompile or in other ways interfere with the Product, Licensee shall give Intellegens four (4) weeks’ prior written notice to enable Intellegens to correct such error or carry out modification of the Product in order to avoid such steps being taken by Licensee.
4.5 Licensee will provide technological and security measures to ensure that the Product is physically and electronically secure from unauthorised use or access.
4.6 Licensee shall ensure that the Product retains all Intellegens’ copyright notices and other proprietary legends and all trademarks or service marks of Intellegens.
5.1 Neither Party may disclose or make available to any third party the other Party’s Confidential Information, unless such use or disclosure is done in accordance with the terms of this Agreement. “Confidential Information“ means (i) the Product, and (ii) information that (a) is designated in writing by the disclosing Party as being confidential, or (b) is by its nature confidential, or (c) the receiving Party knows or reasonably ought to know is confidential, or (d) information comprised in or relating to any intellectual property rights of a Party.
5.2 Each Party must hold the other Party’s Confidential Information secure and in confidence, except to the extent that such Confidential Information
(i) is required to be disclosed according to the requirements of any law, judicial or legislative body or government agency, provided the disclosing Party, to the extent legally permissible, has informed the other Party of the nature and scope of the disclosure obligations as soon as possible after becoming aware of that obligation;
(ii) is approved for release in writing by the other Party, but only to the extent of and subject to such conditions as may be imposed in such written authorisation;
(iii) is or becomes generally available in the public domain otherwise than as a result of a breach of this Agreement;
(iv) becomes lawfully available to the receiving Party from a third party without violation of confidentiality and with no obligation of confidentiality;
(v) is developed independently of disclosure made under this Agreement and under circumstances that do not amount to a breach of this Agreement; or
(vi) is known to or is in the receiving Party’s possession prior to disclosure under this Agreement other than arising out of any confidentiality obligation.
6. Warranties and Disclaimers
6.1 If within ninety (90) days of delivery of the Product to Licensee, the Product, when operated in accordance with the documentation, fails to perform substantially in accordance with the functionality described in the corresponding documentation, and Intellegens is given written notice thereof by Licensee within that ninety (90) day period, Intellegens shall at its option, and as Licensee’s sole remedy, either cure the defect at its own cost and expense or terminate this Agreement forthwith and refund the Licence Fee to Licensee.
6.2 Intellegens warrants that as per the Effective Date, the Product is not subject to any legal action regarding Intellegens’ intellectual property rights vested in the Product. Furthermore, the Product does not, to the best of Intellegens’ knowledge, infringe any third party intellectual property right as of the Effective Date.
6.3 Licensee acknowledges that (i) the Product has not been prepared to meet any specific requirements of any party, including any requirements of Licensee, and (ii) it is the responsibility of Licensee to ensure that the Product meets Licensee’s own individual requirements, and (iii) Intellegens cannot be held liable for any claim, which arises from loss of data or incorrect data collation.
6.4 Licensee acknowledges further that it is not feasible to test the Product in advance in every possible operating combination and environment. Consequently, Intellegens does not warrant that the Product will function in every environment, and Intellegens specifically does not warrant that the Product will operate uninterrupted or error-free.
6.5 Save as expressly otherwise stated in this Agreement, Intellegens gives no warranties and makes no representations in relation to this Agreement, the Product or the documentation. To the extent permitted by law, no express or implied warranty, term, condition or undertaking is given or assumed by Intellegens, including any implied warranty of quality, condition, merchantability or fitness for a particular purpose, except that Intellegens warrants and represents that it has the right to license the Product as specified in this Agreement.
7. Limitation of Liability
7.1 Intellegens may be liable for damages arising directly out of (i) material defects in the Products, and (ii) gross negligence of its employees, and (iii) breach of this Agreement.
7.2 Licensee shall be liable to Intellegens for (i) any breach of the terms of this Agreement by Licensee, and (ii) any negligent act or omission by or on behalf of Licensee.
7.3 The total liability of either Party under this Clause 7 shall be limited to the Licence Fees paid in the preceding twelve (12) months to Intellegens for the Product that gave rise to the claim for any event or series of connected events.
7.4 Notwithstanding the foregoing provisions of this Clause 6, neither Party limits their liability for any physical injury or death caused by operation of this Agreement or by negligence of the respective Party’s employees.
7.5 Except as expressly stated in this Agreement, both Parties disclaim all liability to each other in connection with their respective performance of this Agreement, and in no event will either Party be liable to the other Party for special, indirect, punitive or consequential damages, including loss of profits or loss arising from loss of data.
7.6 If any exclusion, disclaimer or other provision contained in this Agreement is held to be invalid by a court of competent jurisdiction then such liability, whether in contract, tort or otherwise, shall not exceed the fees paid hereunder.
8.1 Intellegens shall indemnify Licensee against all liabilities, costs, expenses, and damages suffered or incurred by Licensee arising out of or in connection with any claim made against Licensee for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the use of the Product. The foregoing is subject to (i) Licensee promptly, and in any event within five (5) calendar days of becoming aware of the claim, notifying Intellegens in writing of any such claim or threatened or actual suit, (ii) Licensee granting Intellegens sole control of the defence of said claim, and (iii) Licensee giving Intellegens all reasonable assistance in the defence of such claim or suit.
8.2 Notwithstanding anything contained in this Agreement, in no event shall Intellegens be liable for any claims, damages or loss which may arise from (i) the modification of the Product, unless the modification was made or formally approved by Intellegens, (ii) combination of the Product with products not supplied or authorised to be combined with the Product by Intellegens, (iii) operation or use of the Product not in accordance with Intellegens’ instruction or the documentation, or (iv) use of a superseded version of the Product, provided that use of the up-to-date version of the Product would avoid such claims, damages or loss.
8.3 In no circumstances will Intellegens be liable for any costs, settlements or expenses incurred by Licensee without Intellegens’ prior written authorisation.
8.4 If any part of the Product becomes the subject of a court ruling that establishes that the Product infringes the rights of any third party, Intellegens may at its option and expense may (i) obtain the right for Licensee to continue to use the Product unhindered, (ii) replace or modify the Product so that it becomes non-infringing, subject to such replacement or modification giving Licensee the same or materially similar functionality as the infringing Product, or (iii) in the event that neither (i) or (ii) is available or feasible, Intellegens may terminate this Agreement and repay any prepaid Licence Fees.
8.5 Licensee shall indemnify, defend and hold harmless Intellegens from and against any and all claims (including third party claims), demands, actions, suits, expenses and damages resulting from Licensee’s contractors’ or agents’ use of or reliance on the Product, misuse of the Product or any negligence hereunder.
9. Data Protection
9.1 The Parties agree that neither Party will process the other Party’s customer or end-user personal data under this Agreement. The only personal data that may be exchanged under this Agreement is each Party’s own employees’ and /or representatives’ personal data, more specifically names, contact details and job titles. Each Party, insofar as it discloses to the other Party personal data concerning its employees and / or representatives for the purpose of performing its obligations under this Agreement, shall disclose only the information necessary for that purpose.
9.2 When processing the other party’s employees’ and / or representatives’ personal data in connection with this Agreement, each party undertakes to comply with the applicable legislation on the protection of personal data, including the Data Protection Act and Regulation 679/2016 (the “GDPR Regulation”) and any generally binding rules adopted in relation to the protection of personal data.
9.3 Each Party independently undertakes responsibility for its own processing of personal data. Infringement by a Party of the provisions of the GDPR Regulation shall not give rise to shared liability with the other Party hereto or the affected individual.
10.1 This Agreement and the licence granted herein commences upon the Effective Date, unless otherwise terminated by Intellegens in the event of any of the following: (i) if either Party is in material breach of any term of this Agreement and has not remedied such breach to the other Party’s reasonable satisfaction within 10 business days of the other Party’s notice of the same; or (ii) if either Party becomes insolvent, or institutes proceedings in bankruptcy, insolvency, reorganisation or dissolution (or such are instituted against it), which are not overturned within sixty (60) days, or makes an assignment for the benefit of creditors.
10.2 Termination under this Clause shall not affect any other rights or remedies Intellegens may have.
11.1 Any failure or delay by either Party to exercise any right, power or privilege hereunder or to insist upon observance or performance by the other of the provisions of this Agreement shall not operate or be construed as a waiver thereof.
12.1 Licensee shall not assign, novate or transfer this Agreement or any rights or obligations under this Agreement, in whole or in part, to any third party without the prior written consent of Intellegens. The consent required by this section shall not be unreasonably withheld.
13.1 All formal legal notices required under this Agreement shall be in writing and shall be deemed given (i) when delivered personally; (ii) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid; or (iii) one (1) business day after dispatch, when sent via a commercial overnight carrier, fees prepaid. All notices given by either Party must be sent to the address of the other as first written above (unless otherwise changed by written notice).
14.1 The Parties agree that provisions of this Agreement shall be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Agreement are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this Agreement or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Agreement will be unaffected.
15. Force Majeure
15.1 Neither Party will be liable to the other Party for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control. If such delay or failure continues in excess of ninety (90) days, the non-delaying Party will be entitled to terminate the Agreement by notice to the other Party in writing.
16. Entire Agreement
16.1 This Agreement contains the entire agreement between the Parties with regards to the subject-matter hereof and supersedes any previous understanding, commitments or agreements, oral or written. The illegality or invalidity of any part of this Agreement shall not affect the legality or validity of the remainder of it. Licensee’s purchase order, electronic acceptance or other communication containing or referring to other or additional terms and conditions are of no force and effect as between Intellegens and Licensee and are replaced entirely by this Agreement.
16.2 Further, this Agreement may not be modified, changed, or otherwise altered in any respect.
17.1 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one instrument.
18. No Third Party Rights
18.1 No provision of this Agreement shall be enforceable by a party who is not a Party to this Agreement.
19.1 Clauses 1.2, 5, 6, 7, 8, 9, 19 and 20 shall survive termination of this Agreement.
20. Governing Law
This Agreement will be construed by and governed in accordance with the laws of England and Wales. The Parties submit to exclusive jurisdiction of the English courts.
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