THIS END-USER LICENCE AGREEMENT (the “EULA”) applies to Intellegens’ supply of software and / or provision of Cloud Hosted or SaaS services. Upon receipt of a purchase order, and in the absence of an expressly agreed and fully executed Software Licence Agreement or other agreement Intellegens Limited, a company organised under the laws of England and Wales, having its registered office at Lewis House, Great Chesterford Court, Great Chesterford, Essex, CB10 1PF, United Kingdom, and its headquarters at The Studio, Chesterton Mill, French’s Road, Cambridge, CB4 3NP, United Kingdom (“Intellegens”) grants the user (the “Licensee”) the following rights subject to the obligations specified hereinafter.
Intellegens and Licensee may separately be referred to as a “Party” and collectively as the “Parties”.
1. Licence Grant
1.1 Subject to the terms and conditions of this EULA, Intellegens hereby grants Licensee a non-exclusive, non-transferable and non-sublicensable licence during the Licence Period and any renewal terms to access and use the Product in object code only in a test and production environment as required. The Product and the scope of the licence are further specified in the commercial proposal accompanying this EULA.
1.2 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 licensed under such third parties’ 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 online (the “Cloud Hosted Solution”), (ii) login to the subscription access to the Product online, i.e. software as a services (“SaaS”), or (iii) access the Product via electronic download, whichever is agreed between the Parties as specified in Schedule One (the “Delivery”).
2.2 The Cloud Hosted Solution represents a platform-as-a-service provided by Intellegens, which Licensee may access and utilise under this EULA. In such circumstances Intellegens shall (i) host the Cloud Hosted Solution on Intellegens’ systems, (ii) make the Cloud Hosted Solution available to Licensee for remote access via Intellegens’ website by, and (iii) store Licensee’s data input and data output. Intellegens retains all right, title and interest in and to the Product, the Cloud Hosted Solution and SaaS, and this EULA does not convey any ownership therein to Licensee. Licensee retains all right, title and interest in its data input and data output.
2.3 Except as expressly authorised in this EULA, Licensee may not without Intellegens’ prior written consent (i) make the Product, Cloud Hosted Solution or SaaS as a whole or in part available to, or use the Product, Cloud Hosted Solution or SaaS for the benefit of, anyone other than Licensee, (ii) copy, modify or create derivative works of the Product Cloud Hosted Solution or SaaS, (iii) reverse engineer, translate, disassemble decompile, adapt, or otherwise attempt to gain unauthorised access to the Product, Cloud Hosted Solution or SaaS, (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 that infringes any patent, trademark, trade secret, copyright or other proprietary rights. Licensee is strictly prohibited from distributing, selling, sub-licensing or in any way letting the Product, the Cloud Hosted Solution or SaaS to any third party.
2.4 Intellegens provides support during weekdays from 9am to 5pm UTC, except public holidays in England, via email and telephone as set out in Schedule One. Efforts will be made to provide support outside these hours at Intellegens‘ discretion.
3. Professional Services
3.1 In conjunction with the Product, Cloud Hosted Services or SaaS, Intellegens may provide certain professional services to Licensee as specified in Schedule One (the “Professional Services”).
3.2 The Professional Services shall be carried out at Intellegens’ own facilities.
3.3 All software programs and algorithms belonging to Intellegens (the “Software”), and any additions, modifications or improvements to the Software, Product, Cloud Hosted Services and SaaS resulting from the Professional Services performed by Intellegens (the “Changes”), together with all copyright, trade secret and other intellectual property rights in each such item shall vest absolutely in, and shall be and remain the sole and exclusive property of, Intellegens.
4.1 In consideration of the licence grant and services provided under this EULA, Licensee agrees to pay Intellegens the licence fee quoted by Intellegens in its proposal for Licensee.
4.2 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.
4.3 The licence fee and any other amounts payable by the Licensee under this EULA 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.
4.4 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.
5. Licensee’s Obligations
5.1 Licensee may permit its contractors or agents to use or operate the Product or access the Cloud Hosted Solution or SaaS 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 or access the Cloud Hosted Solution or SaaS for Licensee only and do not share or disclose the Product, Cloud Hosted Solution or SaaS with any third party, or use it other than in accordance with the terms of this EULA. Licensee shall remain liable for compliance with all terms and conditions of this EULA at all times regardless who uses, accesses or operates the Product, the Cloud Hosted Solution or SaaS on its behalf.
5.2 Licensee acknowledges and accepts that ownership of the Product, the Cloud Hosted Solution or SaaS and all intellectual property rights vested therein remain with Intellegens and its third party suppliers at all times.
5.3 No copies of the Product or documentation may be made other than as expressly approved by Intellegens in writing.
5.4 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, the Cloud Hosted Service or SaaS.
5.5 Licensee will provide technological and security measures to ensure that the Product is physically and electronically secure from unauthorised use or access while in its possession.
5.6 Licensee shall ensure that the Product retains all Intellegens’ copyright notices and other proprietary legends and all trademarks or service marks of Intellegens.
6.1 Neither Party may disclose or make available to any third party the other Party’s Confidential Information, unless such use or disclosure is made in accordance with the terms of this EULA. “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.
6.2 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 EULA,
(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 EULA and under circumstances that do not amount to a breach of this EULA, or
(vi) is known to or is in the receiving Party’s possession prior to disclosure under this EULA other than arising out of any confidentiality obligation.
7. Warranties and Disclaimers
7.1 If within ninety (90) days of Delivery, the Product, Cloud Hosted Service or SaaS, 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 EULA forthwith and refund the licence fee to Licensee.
7.2 Intellegens warrants that as per the Effective Date, the Product, Cloud Hosted Service or SaaS is not subject to any legal action. Furthermore, the Product does not, to the best of Intellegens’ knowledge, infringe any third party intellectual property right as of the Effective Date.
7.3 Intellegens warrants that the Professional Services, if any, (i) will be performed with all due skill and care by skilled and qualified personnel, and (ii) agreed timescales and delivery dates will be met.
7.4 Licensee acknowledges that (i) the Product, Cloud Hosted Service or SaaS 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, Cloud Hosted Service or SaaS 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.
7.5 Licensee acknowledges further that it is not feasible to test the Product, Cloud Hosted Service or SaaS in advance in every possible operating combination and environment. Consequently, Intellegens does not warrant that the Product, Cloud Hosted Service or SaaS will function in every environment, and Intellegens specifically does not warrant that the Product, Cloud Hosted Service or SaaS will operate uninterrupted or error-free.
7.6 Save as expressly otherwise stated in this EULA, Intellegens gives no warranties and makes no representations in relation to this EULA, the Product, Cloud Hosted Service, SaaS 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. Intellegens warrants and represents that it has the right to license the Product as specified in this EULA.
7.7 Intellegens disclaims all liability, and shall not be held liable by Licensee or any third party, for Licensee’s or any third party’s reliance upon, application of or use of Licensee’s data output, which results from Licensee’s use of the Product, Cloud Hosted Service or SaaS.
8. Limitation of Liability
8.1 Intellegens may be liable for damages arising directly out of (i) material defects in the Products, Cloud Hosted Service or SaaS, and (ii) gross negligence of its employees, and (iii) breach of this EULA.
8.2 Licensee shall be liable to Intellegens for (i) any breach of the terms of this EULA by Licensee, and (ii) any negligent act or omission by or on behalf of Licensee.
8.3 The total liability of either Party under this Clause 8 shall be limited to the licence fees paid by Licensee in the preceding twelve (12) months for the Product or service that gave rise to the claim.
8.4 Notwithstanding the foregoing provisions of this Clause 8, neither Party limits their liability for any death or personal injury caused by negligence of the respective Party’s employees.
8.5 Except as expressly stated in this EULA, (i) both Parties disclaim all other liability in connection with their respective performance of this EULA, and (ii) 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.
8.6 If any exclusion, disclaimer or other provision contained in this EULAis 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.
9.1 Intellegens shall indemnify Licensee against all liabilities 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 Licensee’s use of the Product, Cloud Hosted Service or SaaS. 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.
9.2 Notwithstanding anything contained in this EULA, in no event shall Intellegens be liable for any claims, damages or loss which may arise from (i) the modification of the Product, Cloud Hosted Service or SaaS, unless the modification was made or formally approved by Intellegens, (ii) combination of the Product, Cloud Hosted Service or SaaS with products not supplied or authorised to be combined with the Product by Intellegens, where the third party claim would not have arisen but for such combination (iii) operation or use of the Product or service 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.
9.3 In no circumstances will Intellegens be liable for any costs, settlements or expenses incurred by Licensee without Intellegens’ prior written authorisation.
9.4 If any part of the Product, Cloud Hosted Service or SaaS becomes the subject of a court ruling that establishes that the Product or service infringes the rights of any third party, Intellegens may at its option and expense (i) obtain the right for Licensee to continue to use the Product or service unhindered, (ii) replace or modify the Product or service 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 service, or (iii) in the event that neither (i) or (ii) is available or feasible, Intellegens may terminate this EULA and repay any prepaid licence fees.
9.5 Licensee shall indemnify Intellegens against any and all claims, demands, actions, expenses and damages resulting from Licensee’s or its contractors’ or agents’ use of or reliance on the Product the services, misuse of the Product or services or any breach of Clause 2.3 above.
10. Data Protection
10.1 The Parties agree that neither Party will process the other Party’s customer or end-user personal data under this EULA. The only personal data that may be exchanged under this EULA 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 EULA, shall disclose only the information necessary for that purpose.
10.2 When processing the other Party’s employees’ and / or representatives’ personal data in connection with this EULA, each Party undertakes to comply with the applicable legislation on the protection of personal data, including Statutory Instrument 2019 Number 419 Exiting The European Union Data Protection Electronic Communications The Data Protection, Privacy And Electronic Communications (Amendments Etc.) (EU Exit) Regulations 2019 (the “UK GDPR”), the Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and any other legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal (the “Data Protection Regulation”).
10.3 Each Party independently undertakes responsibility for its own processing of personal data. Infringement by a Party of the provisions of the Data Protection Regulation shall not give rise to shared liability with the other Party hereto or the affected individual.
11.1 This EULA and the licence granted herein shall remain in force during the licence or subscription period paid by Licensee (the “Licence Period”). Notwithstanding the foregoing, either Party may give written notice of termination of this EULA to the other Party in the event of (i) the other Party’s material breach of any term of this EULA and such breach has not been remedied to the non-breaching Party’s reasonable satisfaction within 10 business days of giving notice thereof, or (ii) either Party becoming insolvent or instituting proceedings in bankruptcy, insolvency or dissolution (or such are instituted against it), which are not overturned within sixty (60) days, or making an assignment for the benefit of its creditors.
11.2 Termination under this Clause shall not affect any other rights or remedies Intellegens may have.
12. Governing Law and Jurisdiction
12.1 This EULA will be construed by and governed in accordance with the laws of England and Wales. The Parties submit to the exclusive jurisdiction of the English courts.
13.1 Waiver: 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 EULA shall not operate or be construed as a waiver thereof.
13.2 Assignment: Licensee shall not assign, novate or transfer this EULA or any rights or obligations under this EULA, in whole or in part, to any third party without the prior written consent of Intellegens. The consent required by this Clause shall not be unreasonably withheld.
13.3 Notices: All formal legal notices required under this EULA 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).
13.4 Severability: The Parties agree that provisions of this EULA 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 EULA are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted from this EULA or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this EULA will be unaffected.
13.5 Force Majeure: 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 EULA by notice to the other Party in writing.
13.6 Entire Agreement: This EULA 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 EULA 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 EULA.
13.7 Modifications: This EULA may not be modified, changed, or otherwise altered in any respect except by a written agreement signed by both Parties.
13.8 No Third Party Rights: No provision of this EULA shall be enforceable by a party who is not a Party to this EULA.
13.9 Relationship of the Parties: Nothing in this EULA is intended to or shall operate to create a partnership or joint venture of any kind between the Parties. No Party shall have the authority to bind the other Party or to contract in the name of, or create a liability against, the other Party in any way or for any purpose.
13.10 Survival: Clauses 4 and 6-13 shall survive termination of this EULA.
Schedule One – Support and Maintenance Teams
1. Support and maintenance services are included in the SaaS Service subscription of Alchemite™ and entitles Licensee to the following:
(a) Telephone or electronic support in order to help Licensee locate and correct problems with the Product,
(b) Bug fixes and code corrections to correct software malfunctions in order to bring such software into substantial conformity with the operating specifications, and
(c) All extensions, enhancements and other changes that Intellegens, at its sole discretion, makes or adds to the Product and which Intellegens furnishes, without charge, to all other subscribers of the SaaS service.
2. Response and Resolution Goals
(a) “business hours” means 8am-6pm UTC, Monday through Friday, except public holidays in England, UK.
(b) “Fix” means the repair or replacement of software component(s) to remedy a Problem.
(c) “Problem” means a defect in the software as defined in Intellegens’ standard software specification that significantly degrades such software.
(d) “Respond” means acknowledgement of report of a Problem received by Intellegens containing assigned support engineer name, date and time assigned, and severity assignment.
(e) “Workaround” means a change in the procedures followed or data supplied by Licensee to avoid a Problem without substantially impairing Licensee’s use of the Product.
|1. The production system is creating a significant impact to the Customer’s business function preventing that function from being executed.
|Intellegens will Respond within 2 business hours.
|Upon confirmation of receipt, an Intellegens support personnel begins continuous work on the Problem, and a customer resource must be available at any time to assist with Problem determination. Customer Support will provide reasonable effort for a Workaround or Fix within 24 hours, once the Problem is reproducible or once we have identified the Software defect. Intellegens may incorporate such Fix in future release of the software
|2. The production system or application is moderately affected. There is no Workaround currently available or the Workaround is cumbersome to use.
|Intellegens will Respond within 4 business hours.
|Customer Support will provide reasonable effort for a Workaround or Fix within 7 business days, once the Problem is reproducible. Intellegens may incorporate such Fix in future release of the software.
|3. The production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available Workaround.
|Intellegens will Respond within 8 business hours.
|Customer Support will provide reasonable effort for a Workaround or Fix within 10 business days, once the Problem is reproducible. Intellegens may incorporate such Fix in future release of the software.
|4. Non-critical issues, general questions, enhancement requests, or the functionality does not match documented specifications.
|Intellegens will Respond within 24 business hours.
|Resolution of the Problem may appear in future release of the software.
3. Accessing Support
(a) Customer Support offers several ways to resolve any technical difficulties. In addition to online help in the software, which can be accessed by clicking the “Show info panel” tab when logged into the Product, function-specific help information can also be accessed through the online documentation at https://docs.intellegens.com and is available 24×7.
(c) The support phone number is +44 (0) 118 328 2759.