1.2
|
Interpretation
|
|
In these Terms (including the introduction and schedules) unless the context otherwise requires:
(a)
|
reference to a person includes a legal person (such as a limited company) as well as
a natural person;
|
(b)
|
reference to these Terms includes the schedules and appendices and other documents
attached to it or incorporated by reference into it (all as amended, added to or
replaced from time to time);
|
(c)
|
references to clauses or schedules shall be to those in or to these Terms and
references to paragraphs shall be to paragraphs of the schedules or annexes to the
schedules (as the case may be);
|
(d)
|
clause headings are for convenience only and shall not affect the construction of
these Terms;
|
(e)
|
reference to "including" or any similar terms in these Terms shall
be treated as being by way of example and shall not limit the general applicability
of any preceding words; and
|
(f)
|
reference to any legislation shall be to that legislation as amended, extended or
re-enacted from time to time and to any subordinate provision made under that
legislation.
|
|
2.
|
Basis of terms
|
2.1
|
These Terms are framework terms further to which the parties may enter into a Licence Quote in
respect of Services to be provided by the Licensor to the Licensee. The parties may also, from
time to time after the Licence Quote enter into additional quotes (whether in online, electronic
or printed form) in respect of:
(a)
|
additional Licensee Developers, Production Environment(s) and/or to add on a Single
Application Developer Licence, Multiple Applications Developer Licence and/or
Deployment Licence Add-On in excess of the terms set out in the Licence Quote
(together referred to as "Additional Usage"); or
|
(b)
|
a renewed period of Support Services,
|
|
(each an "Additional Quote").
|
|
2.2
|
Each such Licence Quote and Additional Quote (each a "Quote" and together referred
to as a "Quotes"), once agreed in accordance with clause 2.3, shall constitute a
separate contract for the provision of the Services specified in such Quote, incorporating these
Terms.
|
2.3
|
The Licensor will only provide Services to the Licensee further to a Quote. No Quote shall be
binding on either party unless and until agreed by both parties.
|
2.4
|
All Quotes entered into with the Licensee will be subject to the terms set out in these Terms. No
terms or conditions endorsed upon, delivered with or contained in any quotation, estimate,
correspondence, acknowledgement or acceptance of order or any similar document issued by the
Licensee shall form part of any contract between the Licensor and the Licensee.
|
2.5
|
The purchase of Additional Usage will entitle the Licensee to the provision of extended Support
Services for a period of 1 year from the relevant Quote Effective Date (or such other period as
expressly set out in any Quote).
|
2.6
|
In the event of any conflict or inconsistency between the terms of these Terms and the terms of any
Quote, the terms of the relevant Quote shall prevail only to the extent of any such conflict or
inconsistency.
|
3.
|
Provision of Software Materials and Support Services
|
3.1
|
The Licensor shall make the Software Materials available in Source Code form at
https://github.com/ag-grid on the first Quote Effective Date by provision of an activation key and
any login details required to access the Software Materials, subject to payment of the Fees.
|
3.2
|
Subject to clauses 3.3 and 3.4 below, the Licensor grants to the Licensee and its Affiliates a
worldwide, perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free licence (in
the form of a Single Application and/or Multiple Applications Developer Licence), commencing on the
relevant Quote Effective Date, to permit Licensee Developers to use the Software Materials
(including taking all the actions permitted by clause 3.4 below) in accordance with these Terms,
subject to the limit on the number of permitted Licensee Developers set out in the relevant Quote.
Members within the group of Licensee Developers can be replaced with alternative members as long as
the number of concurrent Licensee Developers at any time does not exceed the limit set out in the
relevant Quote. For the purposes of this limit, each developer modifying JavaScript code as part of
the creation or Modification of an Application's user interface, which user interface creation or
Modification uses the Software shall constitute a separate Licensee Developer. For example, if the
Licensee has five developers working with JavaScript code with respect to the creation or
Modification of the user interface of an Application and such creation or Modification uses the
Software, but only two developers are directly working with the Software, all five developers will
be counted as Licensee Developers.
|
3.3
|
Notwithstanding anything else in these Terms, if the relevant Quote specifies that a Deployment
Licence Add-On is being granted by the Licensor to the Licensee then:
(a)
|
subject to this clause 3.3, the licence granted in clause 3.2 shall be
sub-licensable and subject to the limit on the number of permitted Production
Environment(s) set out in the relevant Quote;
|
(b)
|
subject to this clause 3.3 and clause 3.4(a), the Deployment Licence Add-On shall be
subject to the same applicable licence restrictions as set out in these Terms; and
|
(c)
|
the Licensee shall ensure (and shall procure that its Affiliates shall ensure) that
the terms of any sub-licence are in writing and are substantially the same and as
restrictive as the terms of these Terms (except that the sub-licensee shall not have
the right to sub-licence its rights).
|
|
3.4
|
The Licensee and its Affiliates may use the Software Materials to install, load, launch, access,
run, execute, operate, and archive the Software Materials for production, test, archival,
emergency re-start and disaster recovery purposes and to develop and create derivative works
from the Software Materials in the form of Applications, provided that:
(a)
|
unless the relevant Quote specifies that a Deployment Licence Add-On is being
granted by the Licensor to the Licensee, any Application created must be used for
the Licensee's and its Affiliates' internal business purposes only and must not be
licensed to third parties; and
|
(b)
|
the Licensee and its Affiliates shall not permit any end user of any Application to
use the Software independently of, or by or with any applications other than, the
Application being used by that end user.
|
|
3.5
|
For the avoidance of doubt, the Licensee and its Affiliates shall be permitted to create
Modifications to the Source Code to the Software for the Licensee's (and its Affiliates') use of the
Software in accordance with these Terms. In the event that the Licensee and/or its Affiliates
creates any Modifications to the Source Code to the Software, the Licensor shall not be obliged to
provide the Support Services in relation to any such Modification(s) from the date on which any such
Modification(s) take place.
|
3.6
|
The Licensee and its Affiliates shall not change or remove the copyright notice from any of the
files included in the Software Materials.
|
3.7
|
The Licensee and its Affiliates shall not redistribute the Software Materials or any
Modifications other than as expressly permitted by these Terms. For the avoidance of doubt, the
Licensee and its Affiliates shall not redistribute the Software Materials or any Modifications:
(a)
|
other than by including the Software or a portion of the Software within
Application(s); and
|
(b)
|
as part of any Application that can be described as a development toolkit or
library, an application builder, a website builder, a user interface designer, or
any application that is intended for use by software, application, or website
developers or designers, or has a similar purpose or functionality (as determined by
the Licensor).
|
|
3.8
|
Subject to clause 3.5, the
Licensor will provide the Support Services to the Licensee Developers in accordance with SCHEDULE
1 for a period of 1 year from the relevant Quote Effective Date, or for such other period as
expressly set out in the relevant Quote.
|
3.9
|
The Licensee shall ensure that all its Affiliates comply with all obligations of the Affiliates
under these Terms, including all restrictions on the licence granted under clause 3.2
(notwithstanding the fact that the Affiliates are not party to these Terms). The Licensee shall be
liable for all acts or omissions of the Affiliates in relation to these Terms as if such acts or
omissions were the acts or omissions of the Licensee.
|
4.
|
Trial Licence
|
4.1
|
This clause 4 only applies where a trial licence is being granted.
|
4.2
|
Notwithstanding anything else in these Terms, if a trial licence is being granted by the
Licensor to the Licensee, then:
(a)
|
clauses 3.1,
3.2,
3.3,
3.4
and 3.8
shall not apply (unless and until a Licence Quote is entered into between the
parties), and the Licensor instead hereby grants the Licensee and its Affiliates a
revocable, non-exclusive, perpetual, non-transferable and non-sublicensable licence
to install, load, launch, access, run, execute, operate, and archive the Software
Materials (as made available on the Effective Date) solely for the Licensee's and
its Affiliates' internal evaluation and review purposes to determine whether to
enter into a paid licence of the Software and not for any other purpose;
|
(b)
|
the Licensee shall be able to access the Software Materials in Source Code form at
https://www.github.com/ag-grid on the Effective Date;
|
(c)
|
clauses 13
and 14
shall not apply and these Terms shall commence
on the Effective Date and shall continue:
(i)
|
for a period of 60 days, consisting of a trial period of 30 days and
a further period of 30 days during which the parties can agree to
enter into a Licence Quote, provided that the entering into of a
Licence Quote shall cause clauses 13
and 14
to apply; or
|
(ii)
|
until terminated by either party,
|
|
whichever is first;
|
|
(d)
|
clauses 5,
6.1(f)
and 9
shall not apply (unless and until a Licence Quote is entered into between the
parties);
|
(e)
|
the Licensee acknowledges that the Software may place watermarks on output
(including any software that incorporates any part of the Software), have limited
functionality, function for a limited period of time, or limit the functionality or
time of functioning of any output. The Licensee acknowledges that access to and/or
use of any files or output created with the Software is entirely at the Licensee's
own risk; and
|
(f)
|
notwithstanding anything else in these Terms, the Licensor
shall only be required to provide the evaluation support services to the Licensee
Developers as described in paragraph 1.1(a)
of SCHEDULE
1.
|
|
4.2
|
Subject always to clause 10.1,
the Licensee acknowledges in respect of its use of the trial licence of the Software Materials,
it is:
(a)
|
provided for internal evaluation and review purposes only;
|
(b)
|
being used, tested and evaluated by the Licensee and its Affiliates at its own risk;
and
|
(c)
|
the only means by which the Licensee can test whether the Software Materials will be
suitable for the Licensee's and its Affiliates' purposes and that there shall be no
acceptance testing process available in relation to the Software Materials once a
paid licence of the Software has been purchased by the Licensee.
|
|
5.
|
Charges, invoicing and payment
|
5.1
|
The Fees will be invoiced by the Licensor annually in advance upon the relevant Quote Effective
Date. Unless otherwise agreed in writing between the parties, the Licensee must pay each valid
invoice within 30 days of the date of the invoice.
|
5.2
|
Unless otherwise expressly provided in these Terms, all amounts referred to in these Terms are
exclusive of value added tax ("VAT") which, where chargeable by the Licensor, shall
be payable by the Licensee at the rate and in the manner prescribed by law. All other taxes, duties,
customs or similar charges shall be the responsibility of the Licensor.
|
5.3
|
The Licensor will invoice, and the Licensee will pay invoices in USD, unless otherwise agreed.
|
6.
|
Warranties
|
6.1
|
The Licensor represents and warrants that:
(a)
|
it has the right to enter into these Terms and to license the Software Materials and
provide the Support Services (if any) as contemplated by these Terms;
|
(b)
|
the Support Services (if any) shall be performed with reasonable care, skill and
diligence;
|
(c)
|
the Software Materials and Support Services (if any) shall comply with all
applicable laws, regulatory requirements, mandatory standards and codes of practice
of any competent authority for the time being in force;
|
(d)
|
it shall not knowingly introduce into any the Software any computer software routine
intended or designed to disable, damage, erase, disrupt or impair the normal
operation of, or provide unauthorised access to or modification or monitoring of,
any computer system or any software or information stored on any computer system,
including viruses, worms, time bombs, time locks, drop-dead devices, access codes,
security keys, back oors or trap door devices;
|
(e)
|
the Software does not, and shall not, contain any Restrictive Open Source Software;
and
|
(f)
|
the Software shall perform substantially in accordance with the Documentation for a
period of 90 days after: (i) the first Quote Effective Date; and (ii) the provision
of a New Version in accordance with these Terms, provided that this warranty shall
not apply to error or failure resulting from: (i) machine error; (ii) the Licensee's
(and/or its Affiliates') failure to follow operating instructions; (iii) negligence
or accident by any person or entity other than the Licensor; or (iv) modifications
to the Software by any person or entity other than the Licensor.
|
|
6.2
|
The Licensee represents and warrants that:
(a)
|
it has the right to enter into these Terms and to perform its obligations as
contemplated by these Terms; and
|
(b)
|
in the performance of its obligations under these Terms, it shall comply with (and
shall procure that its Affiliates shall comply with) all applicable laws, regulatory
requirements, mandatory standards and codes of practice of any competent authority
for the time being in force.
|
|
6.3
|
THE LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE MATERIALS OR THE CODE PRODUCED BY
THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE LICENSOR PROVIDES THE SOFTWARE MATERIALS ON AN
"AS IS" BASIS AND ALL WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING ANY WARRANTIES OF
TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED TO THE
FULLEST EXTENT PERMITTED BY LAW.
|
6.4
|
THE LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY IN CLAUSE 6.1(f) SHALL BE TO
REQUIRE THE LICENSOR TO REPAIR THE AFFECTED PORTION OF THE SOFTWARE TO ENSURE THAT IT COMPLIES WITH
THE DOCUMENTATION.
|
7.
|
Insurance
|
7.1
|
Without prejudice to the Licensee's obligations and liabilities under these Terms, the
Licensee shall effect and maintain in force for the duration of these Terms, with reputable and
substantial insurers, such policies of insurance as are sufficient for a business of the Licensee's
type and to cover all potential liability of the Licensee under these Terms, including professional
indemnity insurance and public liability insurance. If coverage is written on a claims made basis,
it shall be maintained by the Licensee for at least six years following the termination of these
Terms. The Licensee shall, on the Licensor's request, produce both the insurance certificate giving
details of cover and the receipt for the current year's premium in respect of each insurance.
|
8.
|
Intellectual Property Rights
|
8.1
|
All Intellectual Property Rights in the Licensor Materials and Software Materials shall, at all
imes, be and remain the exclusive property of the Licensor or its third-party licensors. The
Licensor grants the Licensee, for the term of these Terms, a limited, non-transferable,
royalty-free, non-exclusive licence to use the Licensor Materials for the Licensee's internal
business purposes only in connection with the receipt of the Software Materials and Support Services
in accordance with these Terms.
|
8.2
|
All Intellectual Property Rights in the Licensee Materials shall, at all times, be and remain the
exclusive property of the Licensee or its third-party licensors. If applicable, the Licensee grants
the Licensor, for the term of these Terms, a limited, non-transferable, royalty-free, non-exclusive
licence to use the Licensee Materials only for the purpose of carrying out its obligations in
accordance with these Terms. Subject to clause 8.1, no Intellectual Property Rights in any
Application or Modification created by the Licensee will be deemed to transfer to the Licensor under
these Terms.
|
8.3
|
Each party may use or re-use any skills, knowledge, experience, technical information,
inventions, ideas or techniques of whatever nature utilised or gained by such party in the
course of performing its obligations under these Terms ("Know-how"), for its
own benefit or the benefit of third parties, provided that such Know-how does not involve:
(a)
|
the infringement of any part of the Intellectual Property Rights belonging to the
other party (or the other party's third-party licensors); or
|
(b)
|
the use or disclosure of Confidential Information of the ther party where such use
or disclosure would be in breach of clause 11.
|
|
9.
|
Indemnities
|
9.1
|
The Licensor shall indemnify, defend and hold harmless the Licensee against all Losses that the
Licensee incurs or suffers however arising as a result of or in connection with any claim that
the receipt, possession or use of any of the Software Materials, Licensor Materials and/or
Support Services by the Licensee infringes the Intellectual Property Rights or other proprietary
rights of any third party, provided that:
(a)
|
the Licensee notifies the Licensor in writing as soon as easonably practicable of
any claim under clause 9.1 of which the Licensee has notice (an "Indemnified
Claim");
|
(b)
|
the Licensee does not admit any liability or agree to any settlement or compromise
of an Indemnified Claim without the prior written consent of the Licensor, which
shall not be unreasonably withheld or delayed;
|
(c)
|
the Licensor shall, at any time from notification in accordance with clause 9.1(a),
at the Licensor's request, cost and expense, be entitled to assume exclusive conduct
of the Indemnified Claim (which shall include the right to conduct any proceedings
or action in relation to, negotiate the settlement of, and to conduct all
discussions and dispute resolution efforts in connection with the Indemnified Claim,
provided that no settlement of a claim which would or might affect any rights of the
Licensee, or involve any admission of fault or liability on the part of the
Licensee, shall be entered into without the Licensee's prior written consent); and
|
(d)
|
the Licensee shall give the Licensor all assistance that the Licensor may reasonably
require in connection with the conduct of the Indemnified Claim.
|
|
9.2
|
Without prejudice to clause 9.1, in the event that the receipt, possession or use of any of the
Software Materials, Licensor Materials and/or Support Services is restricted as a result of any
claim for which the Licensor is obliged to indemnify under clause 9.1, the Licensor may, at its
discretion, either procure the rights necessary for continued receipt, possession and use or
promptly carry out such modification or replacement as may be necessary to make receipt, possession
and use non-infringing.
|
9.3
|
The Licensor's obligations in clauses 9.1 and 9.2 shall not apply if the third party claim
against the Licensee:
(a)
|
does not state with specificity that the Software Materials, Licensor Materials
and/or Support Services are the basis of the third party claim against the Licensee;
|
(b)
|
arises from the use or combination of the Software Materials, Licensor Materials
and/or Support Services or any part thereof with software, hardware, data,
materials, or processes not provided by the Licensor and the infringement would not
have occurred without such use or combination;
|
(c)
|
arises from Software Materials, Licensor Materials and/or Support Services provided
to the Licensee at no charge; or
|
(d)
|
arises from the Licensee Materials, or the acts or omissions of Licensee Developers,
or the Licensee's breach of these Terms.
|
|
10.
|
Exclusions and limitations
|
10.1
|
Neither party's liability:
(a)
|
for death or personal injury caused by its negligence;
|
(b)
|
for fraudulent misrepresentation or for any other fraudulent act or omission;
|
(c)
|
for breach of clauses 3.6,
3.7
and/or 11;
|
(d)
|
for breach of any indemnity contained in these Terms; or
|
(e)
|
for any other liability which may not lawfully be excluded or limited;
|
|
is excluded or limited by these Terms, even if any other term of these Terms would
otherwise suggest that this might be the case.
|
|
10.2
|
SUBJECT TO CLAUSE 10.1, NEITHER PARTY SHALL BE LIABLE FOR:
(a)
|
ANY INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS;
|
(b)
|
ANY LOSS OF PROFIT;
|
(c)
|
LOSS OF BUSINESS OR CONTRACTS;
|
(d)
|
LOST PRODUCTION OR OPERATION TIME;
|
(e)
|
LOSS OF OR CORRUPTION TO DATA; OR
|
(f)
|
LOSS OF GOODWILL OR ANTICIPATED SAVINGS;
|
|
HOWEVER ARISING (WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
BREACH OF STATUTORY DUTY OR OTHERWISE), WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR
IF THE PARTY WHICH WOULD OTHERWISE BE LIABLE FOR SUCH LOSS WAS ADVISED OF ITS
POSSIBILITY (AND, FOR THE PURPOSES OF THIS CLAUSE 10.2, THE TERM
"LOSS" INCLUDES A PARTIAL LOSS OR REDUCTION IN VALUE AS WELL AS A
COMPLETE OR TOTAL LOSS).
|
|
10.3
|
SUBJECT TO CLAUSES 10.1 AND 10.2, A PARTY'S TOTAL LIABILITY TO THE OTHER PARTY ARISING OUT OF OR
RELATING TO THESE TERMS OR ITS SUBJECT MATTER AND TO ANYTHING WHICH IT HAS DONE OR NOT DONE IN
CONNECTION WITH THE SAME (WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF
STATUTORY DUTY OR OTHERWISE) SHALL BE LIMITED, IN AGGREGATE FOR ALL CLAIMS ARISING, TO THE GREATER
OF: (A) THE TOTAL OF ALL AMOUNTS PAYABLE (WHETHER OR NOT YET PAID) BY THE LICENSEE UNDER THESE
TERMS; AND (B) $5,000. THE TOTAL LIABILITY OF A PARTY FOR ANY SPECIFIC EVENT WILL NOT EXCEED THE
TOTAL AGGREGATE LIABILITY FOR SUCH PARTY, AS CALCULATED ABOVE, LESS ANY SUMS PAYABLE FOR PREVIOUS
EVENTS GIVING RISE TO LIABILITY ON THE PART OF SUCH PARTY THAT HAVE OCCURRED PRIOR TO THE DATE OF
THE SPECIFIC EVENT.
|
11.
|
Confidentiality
|
11.1
|
Each party shall:
(a)
|
keep confidential all Confidential Information of the other party which it receives
in connection with these Terms;
|
(b)
|
only use such Confidential Information as strictly necessary for the performance of,
or exercise of its rights under, these Terms;
|
(c)
|
subject to clause 11.2, not disclose such Confidential Information to any third
party, other than its professional advisers, officers, employees, agents,
contractors and sub-contractors (and any Affiliates and sub-licensees where
permitted under these Terms) on a 'need to know' basis as strictly required for the
purposes of and as permitted under these Terms and subject to each such person being
bound by an obligation of confidentiality equivalent to this clause 11; and
|
(d)
|
promptly, upon request and, in any event, upon termination of these Terms(for
whatever reason), return to the other party all materials (in whatever form)
incorporating, embodying or recording any such Confidential Information in its
possession or control and, if requested by the other party, certify in writing that
it has done so.
|
|
11.2
|
Either party may disclose the other's Confidential Information to the extent required by law or by
any court, tribunal, regulator or other authority with competent jurisdiction to order its
disclosure (but only to the extent of such requirement), provided that, to the extent permitted by
law, the party compelled to make such disclosure shall notify the other party of the disclosure in
advance.
|
12.
|
Data protection
|
12.1
|
Each party shall at all times during the term of these Terms, comply with the Data Protection
Legislation.
|
12.2
|
The Licensor sets out how it uses end user personal data in its privacy policy (that can be found at
https://www.ag-grid.com/privacy).
|
12.3
|
The Licensee shall not send the Licensor any personal data or carry out any act or omission which
would result in the Licensor processing any personal data, from which any individual may be directly
or indirectly identified, unless otherwise expressly agreed between the parties in advance.
|
12.4
|
It is not expected that the Licensor will process any personal data in the provision of the Services
as a processor for GDPR purposes but if it does the parties shall ensure data processing clauses are
included in the relevant Order.
|
12.5
|
The Licensor does not anticipate that it will receive Personal Data when providing the Support
Services, however, to the extent that the parties do share any Personal Data for the purposes of the
provision of the Support Services, the parties agree they will be independent controllers of any
Personal Data shared and shall each comply with their obligations under Data Protection Legislation.
|
12.6
|
Where Personal Data shared as part of the Support Services is transferred outside the UK or the EEA,
except if to an Adequate Country, the parties agree that the EU SCCs as amended by the UK Approved
Addendum shall apply in respect of that processing. The Licensor is the "data importer" and will
comply with the obligations of the "data importer" in the EU SCCs accordingly and the Licensee is
the "data exporter" and will comply with the obligations of the "data exporter" accordingly.
|
12.7
|
The EU SCCs will apply as follows
(a)
|
clause 7 (Docking Clause) of Section 1 will apply;
|
(b)
|
the second paragraph of clause 11 (a) (Redress) of Section II (relating to an
independent resolution body) will not apply;
|
(c)
|
clause 13 (a) (Supervision) of Section II will apply based on where the Licensee, as
data exporter is: (i) established in the EU: "the supervisory authority with
responsibility for ensuring compliance by the data exporter with Regulation (EU)
2016/679 as regards the data transfer, as indicated in Annex I.C will act as
competent supervisory authority"; (ii) outside of the EU but within the
extraterritorial scope of the EU GDPR and has appointed an EU representative: "the
supervisory authority of the Member State in which the representative within the
meaning of Article 27 (1) of Regulation EU 2016/ 679 is established, as indicated in
Annex I.C will act as competent supervisory authority"; (iii) outside of the EU but
within the extraterritorial scope of the EU GDPR and is not required to appoint an
EU representative: "The supervisory authority is one of the Member States in which
the data subjects whose personal data is transferred under these clauses in relation
to the offering of goods or services to them, or whose behaviour is monitored, are
located, as indicated in Annex I.C, will act as competent supervisory authority."
|
(d)
|
Option 1 of clause 17 will apply and the governing law
will be the law of the Republic of Ireland; and
|
(e)
|
in clause 18 (b), the courts will be
the courts of the Republic of Ireland.
|
|
12.8
|
The UK Approved Addendum shall apply as set out in Exhibit
B to these Terms.
|
13.
|
Commencement and duration of Terms
|
13.1
|
These Terms shall commence on the Effective Date and shall, unless sooner terminated in
accordance with its terms, terminate automatically without notice on expiry or termination of
the last Quote.
|
14.
|
Commencement and duration of Quotes
|
14.1
|
The relevant Quote is effective as of the later of the: (i) Effective Date; and (ii) effective date
set out in the relevant Quote ("Quote Effective Date"). The relevant Quote shall
commence on the relevant Quote Effective Date and shall, unless sooner terminated in accordance with
its terms or these Terms, continue for a period of 12 months ("Quote
Initial Term") when it shall terminate automatically without notice unless, no
later than 30 days before the end of the relevant Quote Initial Term (or any Quote Renewal Term
agreed in accordance with this clause), the parties agree in writing (by entering into an Additional
Quote), that the terms of the relevant Quote shall be extended for a period of 12 months from the
effective date set out in the relevant Additional Quote, unless the terms of the relevant Additional
Quote expressly state otherwise: ("Quote Renewal Term)".
|
14.2
|
Unless the relevant Quote is further extended in accordance with this clause or terminated earlier
in accordance with its terms or these Terms, the relevant Quote shall terminate automatically
without notice at the end of the relevant Quote Renewal Term.
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15.
|
Termination
|
15.1
|
Either party may terminate these Terms and/or any Quote by giving the other written notice if:
(a)
|
the other materially breaches any term of these Terms and it is not possible to
remedy that breach;
|
(b)
|
the other materially breaches any term of these Terms and it is possible to remedy
that breach, but the other fails to do so within 30 days of being requested in
writing to do so;
|
(c)
|
the other suffers or undergoes an Insolvency Event and to the extent such
termination is permitted under applicable law; or
|
(d)
|
the other is delayed in performing its obligations under these Terms under clause 17
for a period of 30 days or more.
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For the purposes of this clause 15.1, in order for it to be possible to remedy a breach it must
be possible to take steps so as to put the other party into the same position which (save as to
the date) it would have been in if the breach had never occurred.
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16.
|
Consequences of termination
|
16.1
|
Termination of any Quote will not have the effect of terminating the whole Terms or any other Quote,
but termination of these Terms will automatically terminate all Quotes.
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16.2
|
Termination of these Terms and/or any Quote for any reason will not affect:
(a)
|
any accrued rights or liabilities which either party may have by the time
termination takes effect; or
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(b)
|
the coming into force or the continuation in force of any of its provisions that
expressly or by implication are intended to come into force or continue in orce on
or after termination. Without prejudice to the foregoing,
clauses 3,
4,
6,
7,
9,
10,
11,
16
and 18
shall survive termination of these Terms.
|
|
17.
|
Force majeure
|
|
Neither party will be liable to the other for any failure or delay in performing its obligations
under these Terms which arises because of any circumstances which it cannot reasonably be expected
to control (including any fire, flood, earthquake, elements of nature or acts of God, acts of war
(whether or not war is declared), terrorism, riots, civil disorders, rebellions or revolutions,
strikes, lock outs or other form of industrial action, provided that nothing shall affect the
Licensee's obligation to make any payments due under these Terms.
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18.
|
General
|
18.1
|
Except as expressly permitted under these Terms, the Licensee may not sub-license or assign,
sub-contract or delegate any or all of its rights or obligations under these Terms without the prior
written consent of the Licensor.
|
18.2
|
In the event that the Licensor consents to the Licensee sub-contracting
performance of its obligations, the Licensee will remain liable for performance of the relevant
obligations and shall procure that the sub-contractor complies with all relevant provisions of these
Terms applying to performance of the obligations concerned.
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18.3
|
All notices and consents relating to these Terms must be in writing. Notices must be sent to the
address of the recipient set out in these Terms or otherwise notified by the relevant party in
accordance with these Terms. Notices shall be sent by hand or by first class recorded delivery
or registered post or other form of certified or registered mail (and sent by air mail if posted
to or from a place outside the United Kingdom) and shall be treated as having been delivered:
(a)
|
if sent by hand, when delivered;
|
(b)
|
if sent by registered mail, two days after the date of posting (or, if sent by air
mail, seven days after the date of posting); and
|
(c)
|
if sent by email, at 9.00am on the next Business Day following transmission.
|
|
18.4
|
Unless the parties expressly agree otherwise in writing:
(a)
|
if a party:
(i)
|
fails to exercise or delays exercising or only exercises partially
any right or remedy provided under these Terms or by law; or
|
(ii)
|
agrees not to exercise or to delay exercising any right or remedy
provided under these Terms or by law;
|
then that party shall not be deemed to have waived and shall not be precluded or
restricted from further exercising that or any other right or remedy; and
|
(b)
|
no right, power or remedy under these Terms or otherwise available to a party is
exclusive of any other right, power or remedy under these Terms or otherwise
available to that party.
|
|
18.5
|
If any provision of these Terms is held for any reason to be ineffective or unenforceable, this
shall not affect the validity or enforceability of any other provision of these Terms or these Terms
as a whole. If any provision of these Terms is so found to be ineffective or unenforceable but would
be effective or enforceable if some part of the provision were deleted, the provision in question
shall apply with such modification(s) as may be necessary to make it effective and enforceable.
|
18.6
|
All variations to these Terms must be agreed, set out in writing and signed on behalf of both
parties before they take effect.
|
18.7
|
Except to the extent that these Terms expressly provide otherwise, nothing in these Terms shall or
is intended to create a partnership or joint venture between the parties, constitute one party as
agent of the other or give either party authority to make or enter into commitments, assume
liabilities or pledge credit on behalf of the other party. Neither party may act as f it were or
represent (expressly or by implying it) that it is, an agent of the other or has such authority.
|
18.8
|
Each party confirms that, in entering into and performing these Terms, it is acting as principal and
not as the agent of any undisclosed third-party principal.
|
18.9
|
A person who is not a party to these Terms shall not have any rights under or in connection withcit,
whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
|
18.10
|
The Licensor shall:
(a)
|
comply with all applicable laws, statutes, regulations and codes relating to
anti-bribery and anti-corruption, including the Bribery Act 2010
("Act");
|
(b)
|
not do anything which would constitute an offence or which would cause the Licensee
to commit an offence under the Act;
|
(c)
|
have and shall maintain in place throughout the term of these Terms its own policies
and procedures (copies of which will be made available to the Licensee upon equest),
including adequate procedures to ensure compliance with the Act as informed by the
principles outlined in the guidance to the Act, and will enforce them where
appropriate;
|
(d)
|
promptly report to the Licensee any request or demand for any undue financial or
other advantage of any kind received by the Licensor in connection with the
performance of these Terms; and
|
(e)
|
procure that all associated persons (as defined in the Act) of the Licensor will
comply with clauses 18.10(a) to (c).
|
A breach of this clause 18.10 by the Licensor shall constitute a material breach entitling the
Licensee to terminate these Terms immediately on written notice.
|
18.11
|
These Terms sets out all of the terms that have been agreed between the parties in relation to the
subjects covered by it and no other terms shall be applicable between the parties in relation to
such subjects, including without limitation, any terms set out on any purchase orders that have been
issued by the Licensee. Each party acknowledges that it has not been influenced to enter these Terms
by, and shall have no right or remedy (other than for breach of contract) in respect of, anything
the other party has said or done or committed to do, except as expressly recorded in these Terms,
provided always that nothing in this clause 18.11 will operate to limit or exclude any liability for
fraud or fraudulent misrepresentation.
|
18.12
|
These Terms are governed by English law. The parties submit to the exclusive jurisdiction of the
English courts in relation to any dispute or difference between the parties arising out of or in
connection with these Terms, its interpretation or subject-matter, but the Licensor is also entitled
to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its
Intellectual Property Rights and/or Confidential Information.
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