These Software License Terms (“Agreement”) are by and between Boemska Technology Solutions Ltd., whose registered office is in 2 High Street, Chobham, Woking, England, GU24 8AA (“Licensor”), and the entity or individual entering into the Agreement (“Client”).
Licensor and Client are hereinafter jointly referred to as the Parties or each individually as a Party.
This Agreement is effective on the earlier of (1) installation or use of the Software licensed hereunder by or on behalf of the Client; or (2) payment by Client of the respective fees in the invoice referring to this Agreement; or (3) acceptance of this Agreement by Client (in the online version where the Client shall press “I agree” or “I accept”); or (4) such other date as agreed in between the Parties in writing (“Effective Date”).
BY OPENING THE SOFTWARE PACKAGE, DOWNLOADING OR INSTALLING OR USING THE SOFTWARE PRODUCT THE CLIENT AGREES TO BE BOUND BY THIS AGREEMENT. IF CLIENT DOES NOT AGREE TO THE TERMS HEREIN, THE CLIENT SHALL NOT INSTALL OR USE THE SOFTWARE, AND SHALL PROMPTLY RETURN THE SOFTWARE TO LICENSOR OF THE RELEVANT LICENSOR’S RESELLER.
1. Definitions
“Affiliate” means any legal entity which is controlled by the Party where the term “control” shall mean the possession of the power to direct or cause the direction of the management and policies of the entity whether through the ownership of more than fifty per cent (50%) of shares or voting rights, by contracts or otherwise. Any such legal entity shall be considered an Affiliate only for as long as such control is maintained.
”Consulting Services” means Software related Consulting Services, such as implementation, configuration, or training services, agreed as applicable in the statement of work.
”Client Data” means any content, materials, data, personal data and information that Client enters into the Software or derives from its use and stores in the Software. Client Data and its derivatives do not include Licensor’s Confidential Information.
”Data Protection Legislation” means (i) Regulation 2016/679 (GDPR); (ii) any other EU and/or UK data protection legislation, including without limitation local legislation replacing or adopting the GDPR or other EU regulations in the UK as applicable; and (iii) all applicable changes in law, any judicial or administrative interpretation of laws, any compulsory guidance, guidelines, codes of practice.
“Documentation” means the technical, user and reference manuals, notes, instructions and summaries, technical release notes, specifications and any other supporting documentation related to the Software, whether in digital, printed or other form.
“Intellectual Property Rights” means, without limitation, any and all rights arising by virtue of, or associated with, copyrights, trademarks, registered designs, procedures, databases, inventions, discoveries, patent applications, patents, know-how, and trade secrets applicable thereto, all of the preceding on a worldwide basis.
“License Schedule” means the schedule attached to and incorporated into this Agreement listing the Software licensed by or on behalf of Client from Licensor, respective Maintenance Services and/or Consulting Services purchased, Licensed Capacity, fees and other relevant commercial terms if applicable. Where the Parties have not executed a separate schedule but Licensor’s invoice to Client in respect of licensed Software, or any other document or agreement between the Parties is referencing these Software License Terms, then the references to the License Schedule herein shall be deemed to be the references to such invoice, or document, or agreement between the Parties.
“Licensed Capacity” means the amount of access to the Software purchased as specified in the License Schedule, or, in case of the online terms – in the invoice and/or otherwise agreed in writing between the parties.
“Maintenance Services” means standard generally available services aimed at correcting errors in Software, fixing Software bugs, delivering generally available Software updates, as further described in Licensor then current maintenance documentation.
“Software” means (i) licensed software products listed in the applicable License Schedule and/or invoice; (ii) any patches, revisions, updates, or replacements thereof (“Updates”); (iii) all related materials or files (printed or electronic) accompanying the Software and all copies thereof (“Materials”).
“Subscription Term” means the term of the Software license subscription identified in this Agreement, including the Initial Subscription Term and all Renewal Terms.
”Territory” means the territory of the United Kingdom unless otherwise agreed by the parties in writing.
“Use Metric” means the standard of measurement for determining the permitted use of Software and for calculating the applicable fees due for the Software.
2. Grant of Rights
2.1 Licensor hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right to use the Software products specified in the License Schedule in the Territory, during the Subscription Term, and strictly in accordance with and subject to all the terms and conditions of this Agreement. This right is conditional on Client’s payment of respective license fees as further detailed in this Agreement.
2.2. Where the Parties agree in the License Schedule that Licensor shall also provide Maintenance Services as a part of Software license subscription.
3. Use of Software
3.1. During the Subscription term the Client may use, load, execute, employ and store the Software on the computer system(s) of the Client situated at premises owned and/or controlled by the Client, or, with Licensor’s prior written consent, in a cloud environment of a third party service provider. The Software may only be used for the Client’s and its Affiliates’ internal business purposes and may not be used for the purposes of providing services to third parties (e.g., business process outsourcing, service bureau applications or third party training). The Client shall not lease, loan, resell, sublicense or otherwise distribute the Software.
3.2. The authorised use of the Software shall not exceed the Licensed Capacity agreed in the License Schedule.
3.3. Subject to Section 3.2, if the Client receives multiple copies of the Software, including updates or the Software that replaces previously licensed Software, or if the Client receives the Software bundled with other software or hardware product, or if the Software supports multiple platforms, the total number of the Client’s Use Metrics utilised by the Client may not exceed the Licensed Capacity. If the Software is an update that may be subsequently delivered to the Client with respect to the previous version of the Software, the Client must possess a valid license to such previous version in order to validly use the update.
3.4. Licensor shall be duly notified of all Software installations in the Affiliate’s facilities, and Licensor shall have the right to receive usage reports with respect to such Software, as well as access and audit such installations, in accordance with clause 3.6.
3.5. To the extent the Client wishes to grant access to the Software to its third party service providers (e.g. Client’s suppliers), such access shall only be permitted for the Client’s and its Affiliates’ internal business purposes, up to the Licensed Capacity, and the Client will be responsible for the performance and obligations of all such persons accessing Software and their compliance with all of the terms and conditions of this Agreement.
3.6. At least once a year thereafter, or at Licensor’s request, Client shall report to Licensor in good faith the actual usage of the Software. Licensor may request, and Client hereby grants Licensor, the right to perform an audit of Client’s use of the Software during normal business hours. Client agrees to cooperate with Licensor in such audit and to provide Licensor with all records and data reasonably related to Client’s use of the Software. Such audit will be limited to verification of Client’s compliance with the terms of this Agreement.
3.7. The Client acknowledges that the Software or parts of the Software and related technical information may be subject to national, EU, US and other applicable export control laws and regulations (the "Export Control Regulations") which may prohibit delivery of the Software and/or Maintenance Services to certain countries and/or customers, and accordingly, that the Licensor makes no representation or warranty as to international portability of the Software. The Client accepts responsibility to obtain all necessary legal or other consents if necessary in the event that the Client should wish to export the Software or any part of it into the restricted jurisdictions, and shall indemnify the Licensor in respect of all claims, costs and fines in this respect.
3.8. In case the report or audit reports reveal the use of the Software by Client in excess of the Licensed Capacity, additional Fees will be invoiced to Client in accordance with the Licensor’s then current standard prices for the Software, in respect of the Software used by Client in excess of the Licensed Capacity.
4. Delivery
4.1. Licensor will deliver the Software by making it available for download online at the link as notified by Licensor. Licensor will also deliver an access code, necessary to access the Software. The Software shall be deemed as delivered, when the Client received such access code. The risk of loss shall pass once the Software has been handed over to the carrier for shipment, or at a time when the Software has been made available for downloading online.
4.2. Unless otherwise agreed, Licensor will deliver the release of the Software that is current at the time of the Effective Date of this Agreement. Delivery of the Software is subject to Clause 3.3 of the Agreement, and Licensor is not responsible for delays in or prevention of delivery due to application of applicable export laws.
4.3. No Software is delivered where the Client is licensing only additional quantities of the Software licensed previously.
5. License Fees
5.1. In respect of any Software license the Client shall pay the Licensor an annual subscription license fee ("Fee") based on the rates further detailed in the License Schedule. Licensor agrees that the Subscription Fee shall remain unchanged for the Initial Term. After the Initial Term Licensor reserves the right to increase Client’s Subscription Fee hereunder with a prior written notice by the percentage increase in the Consumer Price Index (CPI) plus 5%. The percentage increase in the CPI will be determined by comparing the percentage difference between the CPI in effect (the last published CPI before the month of notification, and the CPI issued 12 months preceding the CPI in effect. The positive percentage difference between those two CPI issues will be the price adjustment rate. No negative CPI adjustments shall be allowed. CPI as used herein means the following (in case the below mentioned resource has ceased to exist, its successor that publishes applicable local CPI shall be used): UK: Consumer Price Index as issued by the Office for National Statistics https://www.ons.gov.uk/economy/inflationandpriceindices/timeseries/d7g7
5.2. After the Initial Subscription Term, the Licensor may increase the license fee rates for each Renewal Term by notifying the Client of price changes no less than seventy five (75) days prior to the end of the then current Subscription Term. Such changed Fees will be invoiced to the Client in accordance with clause 5.3 below, unless the Client has notified the Licensor of its intention to terminate the Agreement in accordance with the provisions of clause 6.
5.3. Unless otherwise agreed upon by the Parties in the relevant License Schedule or otherwise in writing, the Licensor will invoice the Fees in advance, at beginning of each Subscription Term and the Client shall pay all invoices within thirty (30) days from the date of such invoice. Licensor shall be entitled to charge interest on any overdue amounts at the maximum interest rate permitted by law.
5.4. If the Client is still in default of payment after the payment period for the payment of the Fee set forth in clause 5.3 has passed, and the Fee is still not paid following a consequent reminder by the Licensor, the Licensor may at its sole discretion, and without any liability, suspend Client’s license to the Software in whole or in part (including by revoking the access code) and stop providing Maintenance Services and/or Consulting Services, or both, until payment has been received.
5.5. The Fee does not include any sales, VAT, foreign withholding, use, property, excise, service, or similar taxes now or hereafter levied, all of which shall be for the Client’s account. If the Licensor is required to pay such taxes, the Client shall reimburse the Licensor for such amounts.
5.6. The Client will reimburse the Licensor for all reasonable, pre-approved (by Client in writing) travel and related expenses incurred by Licensor in performing any Maintenance Services or Consulting Services under or in connection with this Agreement.
6. Term And Termination
6.1. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the terms and conditions set forth in this Agreement.
6.2. If the start date of the Client’s License subscription is different from the Effective Date of this Agreement, such Subscription Start Date shall be explicitly stated in the License Schedule, in which case the Subscription Term shall commence on the Subscription Start Date stated in the License Schedule. The Subscription Term will continue for a period one year ("Initial Term"), unless otherwise stated in the License Schedule. Thereafter, the license subscription shall automatically renew for another one-year period (each, a "Renewal Term"); provided, that either Party may choose to not renew the license subscription by providing the other Party a written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. The Initial Term and all Renewal Terms are hereinafter referred to as the Subscription Term.
6.3. Termination:
6.3.1. By the Client for Convenience. After the Initial Term, the Client may terminate this Agreement together with any License Schedule, by providing at least sixty (60) days’ prior written notice to Licensor of such termination prior to the end of the then current Subscription Term.
6.3.2. Termination for Cause. Either Party may terminate this Agreement for cause:
a. upon 30 days written notice of a material breach to the other Party if such breach (if curable) remains uncured at the expiration of such period; or
b. immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3.3. Notwithstanding anything to the contrary in this clause 6.3, Licensor can terminate this Agreement and all License Schedules immediately upon notice to Client if Client breaches Licensor’s intellectual property rights.
6.4. Effective on termination this Agreement for any reason, the Client shall immediately cease all use of the Software, end Client’s access to the Software, cease Maintenance Services and Consulting Services, as applicable. The Client shall have destroyed or returned to Licensor the Software and any copies thereof which are in the possession or control of Client in any form, including all copies of the Software stored on Client’s hardware and backup media, unless, and only to the extent, the Client is required to keep Licensor’s information for the purposes of complying with laws. The Client shall promptly pay to the Licensor all fees then due and owing, including, without limitation, fees for all Consulting Services performed up to the effective date of termination. In no event shall Client be entitled to a refund of the subscription Fees upon such termination. No termination will relieve the Client of the obligation to pay any fees accrued or payable to Licensor.
6.5. In the event of any termination or expiration of this Agreement for any reason, Sections 5, 6, 8, 9, 10 and 11, as well as all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
7. Warranties
7.1. The Client acknowledges that the Software is a standard product and that it is the Client’s sole responsibility to ensure that the Software is appropriate for Client’s requirements.
7.2. The Licensor warrants that the Software will substantially conform to the specifications contained in accompanying Documentation for six months following the initial delivery of such Software product to the Client ("Warranty Period"). The warranty shall not apply: (i) if the Software is not used in accordance with respective Documentation; or (ii) if the defect is caused by any changes to the Software made by the Client and/or third-party; or (iii) during any period when the Fees are not charged to or paid by the Client (including without limitation any trial period, if applicable), provided however that any such period shall not result in the extension of warranty beyond the original Warranty Period. The Licensor does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance. Provided the Client notifies the Licensor in writing with a specific description of the Software’s non-conformance within the Warranty Period, the Licensor will, at its option: a) repair or replace the nonconforming Software, or b) refund the Fees paid for the applicable nonconforming Software in exchange for a return of such nonconforming Software. This is the Client’s sole and exclusive remedy under this warranty.
7.3. Except as expressly provided in this Agreement and except to the extent that any warranties implied by law cannot be validly waived, no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability, durability, fitness for purpose or non-infringement of the Software or any associated Materials and/or Documentation is given or assumed by the Licensor and all such warranties, conditions, undertakings and terms are hereby expressly excluded.
8. Intellectual Property Rights
8.1. All Intellectual Property Rights in the Software, and all originals and copies thereof shall remain the exclusive property of the Licensor or its licensors as appropriate. The Client shall have no right, title or interest in the Software except as expressly granted under this Agreement.
8.2. Except for the rights set forth in clause 8.3 herein, the Client is not permitted to modify or otherwise make derivative works of the Software. Any such unauthorized works developed by the Client, and any Intellectual Property Rights embodied therein, shall be the sole and exclusive property of the Licensor.
8.3. The Client shall not perform changes or alterations to the Software, translate, disassemble, decompile, nor create or attempt to create the source code from the object code of the Software in any manner, unless expressly permitted by local mandatory law. Reverse engineering of the Software is prohibited, unless expressly permitted by local mandatory law. The Client is permitted to create the necessary backup copies of the Software. The copyright notice(s) that appear in original programs and/or on the original media on which the Software is delivered and/or associated documentation must not be removed and must be reproduced on all copies.
9. Confidentiality
9.1. Except as required for the performance of its obligations under this Agreement, the Client shall keep the Software, including all Documentation, confidential and shall not, without prior written consent of the Licensor, disclose this information to any person other than the Client’s or its Affiliates’ employees to the extent required to perform the Client’s obligations under this Agreement.
9.2. Notwithstanding clause 9.1 and without prejudice to clause 9.5, each Party shall at all times keep confidential the terms and conditions of this Agreement, any commercial information shared with it by the other Party, all information and data relating to the operations and business affairs of the other Party including without limitation existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies, concepts, know how belonging to the other Party and any information related thereto as well as information relating to business plans, sales or marketing methods, customers or business partners ("Confidential Information").
9.3. Each Party:
a. Shall use such Confidential Information only for the purposes of this Agreement;
b. Shall only disclose the Confidential Information to its and its Affiliates’ employees and professional advisors on a need to know basis; and
c. Shall not disclose the Confidential Information to any third party without prior written consent of the other Party.
9.4. Obligations contained in clauses 9.2 and 9.3 shall not apply to any information which:
d. becomes public knowledge otherwise than through breach of these obligations;
e. is already in the possession of the recipient otherwise than through breach of these obligations;
f. is disclosed to the recipient by a third party without breach of any confidentiality obligation;
g. is independently developed by the Receiving Party without regard to the Confidential Information of the other Party; or
h. is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority; provided, however, the Receiving Party shall: (a) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order; and (b) limit the disclosure to minimum amount that is legally required to be disclosed.
9.5. Obligations contained in clauses 9.1-9.4 shall survive the termination of this Agreement.
9.6. Subject to Client’s prior written consent, the Licensor shall be allowed to mention the name of the Client in press releases, its Client listings and other public statements, including without limitation its marketing and advertisement materials.
10. Liability
10.1. Each Party’s total aggregate liability to the other Party in respect of all claims under this Agreement (whether in contract, tort or otherwise) shall not exceed 100% of Fees paid for the Software or Consulting Services directly causing damages in the 12-month period preceding the occurrence of the event, giving rise to such claim. Such agreed limitations on liability will not apply in respect of death or personal injury, or in respect of fraud, in respect of breach of Licensor’s Intellectual Property rights or licensing terms under this Agreement, in respect to indemnity obligations set forth in this Agreement, or where it is not otherwise possible to limit the liability of the Parties under the applicable law.
10.2. Neither Party shall be liable for indirect, incidental or consequential loss or damage or loss of profits, loss of revenue, loss of anticipated savings or loss of data.
11. Indemnity
11.1. The Licensor will at its option procure the defence or the settlement of any legal action brought against the Client alleging that use of the one or more elements of the Software infringes the Intellectual Property Rights of any third party, provided that (i) the Licensor is given information, assistance and the sole authority to procure the defence or settlement of the claim; and (ii) the Client notifies the Licensor promptly in writing of any alleged infringement and makes no admissions in respect thereof.
11.2. If the Client’s use of one or more elements of the Software in accordance with the terms of this Agreement is held by a court of competent jurisdiction to constitute an infringement of third party's Intellectual Property Rights or if the Licensor believes that such use is likely to constitute such an infringement, then the Licensor shall promptly and at its own expense:
a. procure for the Client the right to continue to use such elements of the Software; or
b. modify the relevant elements of the Software so as to avoid the infringement; or
c. if sub-clauses 11.2(a) and 11.2(b) cannot be accomplished on reasonable terms, terminate the relevant License Schedule or this Agreement upon written notice to the Client without any liability to this Client except as provided in this Section 11.
11.3. Subject to the Client complying with its obligations under clause 11.1 of this Agreement, the Licensor shall indemnify and hold the Client and its Affiliates harmless against all damages and costs finally awarded against the Client or agreed by the Licensor by way of settlement to the extent that the underlying claim is based on an allegation by a third-party claimant that the Software of extensions thereto created solely by Licensor have infringed such third party’s Intellectual Property Rights.
11.4. The Licensor's obligations under this Section 11 shall not apply in the event that the legal action results from: (i) use of other than the current version of the Software; (ii) the use of the Software or data other than as authorised under this Agreement or in combination with the third party software or data.
11.5. To the fullest extent permitted by law, the Client shall indemnify, defend, and hold the Licensor, its Affiliates, officers, directors, employees and agents harmless from any damages, losses and claims arising out of or related to any instructions, information or materials provided to the Licensor or its agents or vendors by or on behalf of the Client. In order to be entitled to the indemnity provided in the immediately preceding sentence, the Licensor must: (i) promptly notify the Client of such action; (ii) give the Client full authority, information and assistance to the extent reasonably requested by the Client, at the Client’s sole expense, to defend such claim; and (iii) give the Client sole control of the defence of such claim and all negotiations for the compromise or settlement thereof.
11.6. The provisions of this Section 11 state the sole, exclusive and entire liability of the Parties for the actions covered by indemnities in this Section 11.
12. Personal Data
12.1. Both Licensor and Client undertake to comply with such applicable Data Protection Legislation.
12.2. The Parties agree in respect of any personal data (as defined in Data Protection Legislation) that may be transferred from one to the other pursuant to this Agreement that:
12.3. the processing, including the transfer itself, of such personal data will be carried out in accordance with the relevant provisions of in the Data Protection Legislation;
12.4. any personal data processing by a processor (as defined in Data Protection Legislation) shall be done only pursuant to the instructions of the controller (as defined in Data Protection Legislation) and only for the purposes of performing the Party’s obligations under this Agreement;
12.5. each Party will provide commercially reasonable assistance in respect of processing of personal data of the other party for the purposes of this Agreement;
12.6. the Parties will discontinue processing any personal data in the event that there is a change in legislation that makes such processing illegal;
12.7. the Parties will, where relevant, execute a separate Data Protection Annex to this Agreement, including EU Model Clauses in respect of personal data transfers outside of the EU and EEA.
13. Other Provisions
13.1. This Agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous agreement between the Parties concerning the subject matter hereof. Neither Party has relied upon any statement or representation made by the other in agreeing to enter this Agreement.
13.2. Client and Licensor are acting hereunder as independent contractors. Neither Party shall be considered or deemed to be an agent, employee, joint venturer or partner of the other Party.
13.3. A Party’s personnel shall not be considered employees of the other Party, shall not be entitled to any benefits that the other Party grants its employees and shall have no authority to act or purport to act on the other Party’s behalf. Each Party shall be responsible for the conduct of its personnel. Neither Client nor Licensor has the right, and shall not seek, to exercise any control over the other Party or its personnel. Each Party shall be solely responsible for hiring, firing, promoting, demoting, rates of pay, taxes, benefits and other terms and conditions in regard to its own personnel.
13.4. All changes to this Agreement shall be made in writing in a document signed by authorised representatives of both Parties.
13.5. The Parties shall not be entitled to assign this Agreement nor any of its rights or obligations under it.
13.6. No person who is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
13.7. No delay or failure by either Party to enforce a term under this Agreement will be deemed a waiver of any such right.
13.8. Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance, provided however that if such conditions continue for a period of 45 days the Party, which is not in delay or fails to perform its obligations hereunder due to such conditions, shall be entitles to terminate this Agreement and all License Schedule on a written notice to the other Party.
13.9. All notices shall be in writing and delivered by hand, or sent by first class post to the address of the other Party as notified by it, or via fax or e-mail as notified by the respective Party from time to time, and shall be deemed received on the earlier of actual receipt or 3 days after posting.
13.10. If any provision of this Agreement is adjudged to be invalid, void or unenforceable, the remainder of the provisions will remain in effect.
13.11. This Agreement shall be governed by English law, and any matters shall be adjudicated by English courts.
13.12. The headings in this Agreement are for purposes of convenience only and shall not affect the meaning or construction of the clauses to which they relate.
CLIENT AGREES THAT CLIENT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY IT AS IF THE CLIENT HAS SIGNED IT IN WRITING. IF CLIENT IS ACTING ON BEHALF OF THE OTHER ENTITY CLIENT WARRANTS THAT IT HAS THE AUTHORITY OT ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.