1.
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Definitions and interpretation
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| 1.1 |
Definitions |
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In these Terms, where the context so admits, the following words and expressions shall have the
following meanings:
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"Affiliate" |
in relation to a party any corporate entity Controlled directly or indirectly
by that party, any corporate entity that Controls, directly or indirectly that party or any corporate
entity under common Control with that party;
|
|
"Application" |
any software, application or elements developed by or on behalf of the
Licensee using the Software;
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"Additional Usage" |
the meaning set out in clause 2.1;
|
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"Additional Quote" |
has the meaning set out in clause 2.1;
|
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"Business Day" |
means each day which is not a Saturday, Sunday or public holiday in
the country in which the Licensor is located;
|
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"Confidential Information" |
means all information (whether written, oral or in some other form)
disclosed to or obtained by one party (whether directly or indirectly) from the other (whether
before or after the Effective Date), including all information relating to that other's business,
operations, systems, processes, products, trade secrets, know-how, contracts, finances, plans,
strategies or current, former or prospective clients, customers, partners or suppliers (together
with copies made of any of the foregoing) and which information is marked as being confidential
or might reasonably be assumed to be confidential, but excluding information which:
| (a) |
is available to the public other than because of any breach of
these Terms;
|
| (b) |
is, when it is supplied, already known to whoever it is disclosed
to in circumstances in which they are not prevented from disclosing it to others;
|
| (c) |
is independently obtained by whoever it is disclosed to in
circumstances in which they are not prevented from disclosing it to others; or
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| (d) |
is trivial or obvious; |
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Licensors' Confidential Information includes Licensor Materials.
The Licensee's Confidential Information includes the Licensee Materials;
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|
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"Control" |
the power to direct the management and policies of an entity
whether through the ownership of voting capital, by contract or otherwise; and a holding
or subsidiary company of any entity shall be deemed to be an Affiliate of that entity;
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"Data Protection Legislation" |
all applicable legislation for the time being in force pertaining to
data protection, data privacy, data retention and/or data security and including the General Data
Protection Regulation (Regulation 2016/679) ("GDPR") the Privacy and Electronic
Communication Directive (Directive 2002/58/EC) and national legislation implementing or
supplementing such legislation in the United Kingdom and any applicable member state of the
European Union, including the Data Protection Act 2018 and all associated codes of practice
and other guidance issued by any applicable data protection authority;
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"Deployment Licence
Add-On"
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a licence of the Software Materials granted to the Licensee in addition
to either the Single Application Developer Licence or Multiple Applications Developer Licence,
which permits the Licensee to sub-licence the Software Materials in accordance with these Terms;
|
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"Documentation" |
means the operating manuals, user instructions, technical literature and
all other related materials in eye-readable form supplied to the Licensee by the Licensor (whether
in online, electronic or printed form) for aiding the use and application of the Software;
|
|
"Error" |
means any error, defect or malfunction in the Software that: (a) causes the
integrity of its data to be compromised or corrupted; (b) causes an unexpected error message or
fatal error to occur while using the Software; (c) causes the Software to fail to conform to any
applicable warranties, including those set out in clause 6.1;
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"Fees" |
means the fees for the Services, as set out in the relevant Quote; |
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"Insolvency Event" |
means, in relation to a person (which includes an individual
and a legal person, such as a limited company), any of the following events:
| (a) |
a meeting of creditors of that person being held or an arrangement
or composition with or for the benefit of its creditors (including a voluntary arrangement
as defined in the Insolvency Act 1986) being proposed by or in relation to that person;
|
| (b) |
a chargeholder, receiver, administrative receiver or other similar
person taking possession of or being appointed over or any distress, execution or other
process being levied or enforced (and not being discharged within seven days) on the whole
or a material part of the assets of that person;
|
| (c) |
that person ceasing to carry on business or being deemed to be
unable to pay its debts within the meaning of section 123 Insolvency Act 1986 (except that,
for the purposes of this agreement, the reference to £750 in section 123(1) of that
Act shall be construed as a reference to £10,000);
|
| (d) |
that person or its directors or the holder of a qualifying
floating charge or any of its creditors giving notice of their intention to appoint,
appointing or making an application to the court for the appointment of, an administrator;
|
| (e) |
a petition being advertised or a resolution being passed or an
order being made for the administration or the winding-up, bankruptcy or dissolution of
that person; or
|
| (f) |
the happening in relation to that person of an event analogous to
any of the above in any jurisdiction in which it is incorporated or resident or in which it
carries on business or has assets.
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|
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"Intellectual Property Rights" |
means patents, patentable rights, copyright, design rights, utility models,
trade marks (whether or not any of the above are registered), trade names, rights in domain names,
rights in inventions, rights in data, database rights, rights in know-how and confidential information,
and all other intellectual and industrial property and similar or analogous rights existing under the
laws of any country and all pending applications for and right to apply for or register the same
(present, future and contingent, and including all renewals, extensions, revivals and all accrued
rights of action);
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"Know-how" |
has the meaning set out in clause 8.3;
|
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"Licence Quote" |
means a written licence quote (whether in online, electronic or printed form)
agreed between the parties in relation to the Licenced Materials which shall be deemed
to incorporate these Terms;
|
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"Licensee Developers" |
means the Licensee's (and any of its Affiliates') employees, workers and
contractors who are authorised by the Licensee to, and qualified to, develop software products that
include the Software;
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"Licensee Materials" |
means all intellectual property, works, products, documentation, information,
data and other material of any kind (including computer software, applications developed by or on behalf
of the Licensee and firmware, designs and specifications) provided or made available by or on behalf of
the Licensee in connection with these Terms;
|
|
"Licensor Materials" |
means all intellectual property, works, products, documentation,
information, data and other material of any kind (including computer software and firmware, designs
and specifications) provided or made available by or on behalf of the Licensor in connection with
these Terms, excluding the Software Materials;
|
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"Losses" |
means all losses, liabilities, demands, claims, judgments, awards,
damages, amounts payable in settlement, costs and expenses (including all legal and other
professional fees, expenses and disbursements);
|
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"Modification" |
means: (a) any addition to or deletion from the contents of a file
included in the Software or previous Modifications created by the Licensee; and/or (b) any new
file that leverages any part of the Software or previous Modifications;
|
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"Multiple Applications Developer
Licence"
|
means a licence of the Software Materials granted to the Licensee which
permits the Licensee (and any of its Affiliates) to develop, between them, an unlimited number of
Applications using the Software Materials in accordance with and subject to these Terms, provided
that new versions and different editions of an Application shall be considered, for the purposes
of the number of permitted Applications, to be the same as the original Application as long as
they are in the same evolutionary line;
|
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"New Version" |
means any new version of the Software which from time to time is
publicly marketed and offered for licensing by the Licensor in the course of its normal business,
being a version which contains such significant differences from the previous versions as to be
generally accepted in the marketplace as constituting a new product;
|
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"Our Site" |
means https://www.ag-grid.com;
|
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"Quote(s)" |
has the meaning set out in clause 2.2;
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"Quote Effective Date" |
has the meaning set out in clause 14.1;
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"Quote Initial Term" |
has the meaning set out in clause 14.1;
|
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"Quote Renewal Term" |
has the meaning set out in clause 14.1;
|
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"Restrictive Open Source Software" |
means any software or software component that fulfils the definition of "open
source" for the purpose of the Open Source Definition maintained by the Open Source Initiative
at https://opensource.org/osd and also requires, as a
condition of its use, that any software created with, incorporating, derived from, and/or
distributed with such software or software components, must:
| (a) |
be disclosed or distributed in source code form; |
| (b) |
be licensed under terms that permit making derivative works;
and/or |
| (c) |
be re-distributable at no charge to subsequent licensees; |
|
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"Production Environment" |
means a computer, server, collection of servers, a data centre,
a cloud instance, container or similar where the Licensee's services and/or store are made
available to the Licensee's customers;
|
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"Services" |
means the services (including the supply of Software Materials and Support
Services), set out in the relevant Quote, to be provided by the Licensor under such Quote;
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"Single Application Developer Licence"
|
means a licence of the Software Materials granted to the Licensee which
permits the Licensee (and any of its Affiliates) to develop, between them, one Application using
the Software Materials in accordance with and subject to these Terms, provided that new versions
and different editions of an Application shall be considered, for the purposes of the number of
permitted Applications, to be the same as the original Application as long as they are in the
same evolutionary line;
|
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"Site" |
means https://www.github.com/ag-grid/ag-grid;
https://www.npmjs.com/package/@ag-grid-enterprise/; or any UMD bundle with an "ag-grid-enteprise."
prefix;
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"Software" |
means the ag-Grid 'Enterprise' software made available by the Licensor;
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"Software Materials" |
means, collectively, the Software and any applicable Documentation;
|
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"Source Code" |
means the human-readable form of computer software, together with all
documentation and comments relating thereto sufficient for a reasonably skilled computer programmer
to understand, use, support and modify such computer software;
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"Support Forum" |
has the meaning given to it in paragraph 1 of SCHEDULE 1;
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"Support Release" |
means a release of the Software which corrects faults, adds
functionality or otherwise amends or upgrades the Software, but which does not constitute
a New Version;
|
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"Support Request" |
means a request communicated by the Licensee to the Licensor via
the Support Forum, to report an Error and to request correction of the Error, or to request
some other support service or assistance;
|
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"Support Services" |
means the support services, to be provided by the Licensor in
respect of the Software (including the provision of Updates), as set out in SCHEDULE 1; and
|
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"Update" |
means any Support Release and/or New Version. |
| 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.
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2.
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Basis of terms
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| 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 outin 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 (together referred to as
"Quotes" and a reference to a "Quote" shall refer to a Licence
Quote or Additional Quote, as applicable), 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.
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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/ag-grid on the first Quote Effective Date by provision of an
activation key and anylogin 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/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 90 days, consisting of a trial period
of 60 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 Licensed
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 the currency
to be agreed between the parties and as set out in the relevant Quote.
|
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
doors 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 this agreement; 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
times, 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 other
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
reasonably 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 this Agreement.
|
|
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; or |
| (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.
|
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.
|
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.
|
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.
|
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.
|
| 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
|
| (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
force 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.
|
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.
|
| 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 request), 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 |
This agreement 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 this agreement 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 this agreement, 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.
|
1.
|
Definitions and interpretation
|
| 1.1 |
Definitions |
|
In these Terms, where the context so admits, the following words and expressions shall have the
following meanings:
|
|
"Affiliate" |
in relation to a party any corporate entity Controlled directly or indirectly
by that party, any corporate entity that Controls, directly or indirectly that party or any corporate
entity under common Control with that party;
|
|
"Application" |
any software, application or elements developed by or on behalf of the
Licensee using the Software;
|
|
"Additional Usage" |
the meaning set out in clause 2.1;
|
|
"Additional Quote" |
has the meaning set out in clause 2.1;
|
|
"Business Day" |
means each day which is not a Saturday, Sunday or public holiday in
the country in which the Licensor is located;
|
|
"Confidential Information" |
means all information (whether written, oral or in some other form)
disclosed to or obtained by one party (whether directly or indirectly) from the other (whether
before or after the Effective Date), including all information relating to that other's business,
operations, systems, processes, products, trade secrets, know-how, contracts, finances, plans,
strategies or current, former or prospective clients, customers, partners or suppliers (together
with copies made of any of the foregoing) and which information is marked as being confidential
or might reasonably be assumed to be confidential, but excluding information which:
| (a) |
is available to the public other than because of any breach of
these Terms;
|
| (b) |
is, when it is supplied, already known to whoever it is disclosed
to in circumstances in which they are not prevented from disclosing it to others;
|
| (c) |
is independently obtained by whoever it is disclosed to in
circumstances in which they are not prevented from disclosing it to others; or
|
| (d) |
is trivial or obvious; |
|
Licensors' Confidential Information includes Licensor Materials.
The Licensee's Confidential Information includes the Licensee Materials;
|
|
|
"Control" |
the power to direct the management and policies of an entity
whether through the ownership of voting capital, by contract or otherwise; and a holding
or subsidiary company of any entity shall be deemed to be an Affiliate of that entity;
|
|
"Data Protection Legislation" |
all applicable legislation for the time being in force pertaining to
data protection, data privacy, data retention and/or data security and including the General Data
Protection Regulation (Regulation 2016/679) ("GDPR") the Privacy and Electronic
Communication Directive (Directive 2002/58/EC) and national legislation implementing or
supplementing such legislation in the United Kingdom and any applicable member state of the
European Union, including the Data Protection Act 2018 and all associated codes of practice
and other guidance issued by any applicable data protection authority;
|
|
"Deployment Licence
Add-On"
|
a licence of the Software Materials granted to the Licensee in addition
to either the Single Application Developer Licence or Multiple Applications Developer Licence,
which permits the Licensee to sub-licence the Software Materials in accordance with these Terms;
|
|
"Documentation" |
means the operating manuals, user instructions, technical literature and
all other related materials in eye-readable form supplied to the Licensee by the Licensor (whether
in online, electronic or printed form) for aiding the use and application of the Software;
|
|
"Error" |
means any error, defect or malfunction in the Software that: (a) causes the
integrity of its data to be compromised or corrupted; (b) causes an unexpected error message or
fatal error to occur while using the Software; (c) causes the Software to fail to conform to any
applicable warranties, including those set out in clause 6.1;
|
|
"Fees" |
means the fees for the Services, as set out in the relevant Quote; |
|
"Insolvency Event" |
means, in relation to a person (which includes an individual
and a legal person, such as a limited company), any of the following events:
| (a) |
a meeting of creditors of that person being held or an arrangement
or composition with or for the benefit of its creditors (including a voluntary arrangement
as defined in the Insolvency Act 1986) being proposed by or in relation to that person;
|
| (b) |
a chargeholder, receiver, administrative receiver or other similar
person taking possession of or being appointed over or any distress, execution or other
process being levied or enforced (and not being discharged within seven days) on the whole
or a material part of the assets of that person;
|
| (c) |
that person ceasing to carry on business or being deemed to be
unable to pay its debts within the meaning of section 123 Insolvency Act 1986 (except that,
for the purposes of this agreement, the reference to £750 in section 123(1) of that
Act shall be construed as a reference to £10,000);
|
| (d) |
that person or its directors or the holder of a qualifying
floating charge or any of its creditors giving notice of their intention to appoint,
appointing or making an application to the court for the appointment of, an administrator;
|
| (e) |
a petition being advertised or a resolution being passed or an
order being made for the administration or the winding-up, bankruptcy or dissolution of
that person; or
|
| (f) |
the happening in relation to that person of an event analogous to
any of the above in any jurisdiction in which it is incorporated or resident or in which it
carries on business or has assets.
|
|
|
"Intellectual Property Rights" |
means patents, patentable rights, copyright, design rights, utility models,
trade marks (whether or not any of the above are registered), trade names, rights in domain names,
rights in inventions, rights in data, database rights, rights in know-how and confidential information,
and all other intellectual and industrial property and similar or analogous rights existing under the
laws of any country and all pending applications for and right to apply for or register the same
(present, future and contingent, and including all renewals, extensions, revivals and all accrued
rights of action);
|
|
"Know-how" |
has the meaning set out in clause 8.3;
|
|
"Licence Quote" |
means a written licence quote (whether in online, electronic or printed form)
agreed between the parties in relation to the Licenced Materials which shall be deemed
to incorporate these Terms;
|
|
"Licensee Developers" |
means the Licensee's (and any of its Affiliates') employees, workers and
contractors who are authorised by the Licensee to, and qualified to, develop software products that
include the Software;
|
|
"Licensee Materials" |
means all intellectual property, works, products, documentation, information,
data and other material of any kind (including computer software, applications developed by or on behalf
of the Licensee and firmware, designs and specifications) provided or made available by or on behalf of
the Licensee in connection with these Terms;
|
|
"Licensor Materials" |
means all intellectual property, works, products, documentation,
information, data and other material of any kind (including computer software and firmware, designs
and specifications) provided or made available by or on behalf of the Licensor in connection with
these Terms, excluding the Software Materials;
|
|
"Losses" |
means all losses, liabilities, demands, claims, judgments, awards,
damages, amounts payable in settlement, costs and expenses (including all legal and other
professional fees, expenses and disbursements);
|
|
"Modification" |
means: (a) any addition to or deletion from the contents of a file
included in the Software or previous Modifications created by the Licensee; and/or (b) any new
file that leverages any part of the Software or previous Modifications;
|
|
"Multiple Applications Developer
Licence"
|
means a licence of the Software Materials granted to the Licensee which
permits the Licensee (and any of its Affiliates) to develop, between them, an unlimited number of
Applications using the Software Materials in accordance with and subject to these Terms, provided
that new versions and different editions of an Application shall be considered, for the purposes
of the number of permitted Applications, to be the same as the original Application as long as
they are in the same evolutionary line;
|
|
"New Version" |
means any new version of the Software which from time to time is
publicly marketed and offered for licensing by the Licensor in the course of its normal business,
being a version which contains such significant differences from the previous versions as to be
generally accepted in the marketplace as constituting a new product;
|
|
"Our Site" |
means https://www.ag-grid.com;
|
|
"Quote(s)" |
has the meaning set out in clause 2.2;
|
|
"Quote Effective Date" |
has the meaning set out in clause 14.1;
|
|
"Quote Initial Term" |
has the meaning set out in clause 14.1;
|
|
"Quote Renewal Term" |
has the meaning set out in clause 14.1;
|
|
"Restrictive Open Source Software" |
means any software or software component that fulfils the definition of "open
source" for the purpose of the Open Source Definition maintained by the Open Source Initiative
at https://opensource.org/osd and also requires, as a
condition of its use, that any software created with, incorporating, derived from, and/or
distributed with such software or software components, must:
| (a) |
be disclosed or distributed in source code form; |
| (b) |
be licensed under terms that permit making derivative works;
and/or |
| (c) |
be re-distributable at no charge to subsequent licensees; |
|
|
"Production Environment" |
means a computer, server, collection of servers, a data centre,
a cloud instance, container or similar where the Licensee's services and/or store are made
available to the Licensee's customers;
|
|
"Services" |
means the services (including the supply of Software Materials and Support
Services), set out in the relevant Quote, to be provided by the Licensor under such Quote;
|
|
"Single Application Developer Licence"
|
means a licence of the Software Materials granted to the Licensee which
permits the Licensee (and any of its Affiliates) to develop, between them, one Application using
the Software Materials in accordance with and subject to these Terms, provided that new versions
and different editions of an Application shall be considered, for the purposes of the number of
permitted Applications, to be the same as the original Application as long as they are in the
same evolutionary line;
|
|
"Site" |
means https://www.github.com/ag-grid/ag-grid;
https://www.npmjs.com/package/@ag-grid-enterprise/; or any UMD bundle with an "ag-grid-enteprise."
prefix;
|
|
"Software" |
means the ag-Grid 'Enterprise' software made available by the Licensor;
|
|
"Software Materials" |
means, collectively, the Software and any applicable Documentation;
|
|
"Source Code" |
means the human-readable form of computer software, together with all
documentation and comments relating thereto sufficient for a reasonably skilled computer programmer
to understand, use, support and modify such computer software;
|
|
"Support Forum" |
has the meaning given to it in paragraph 1 of SCHEDULE 1;
|
|
"Support Release" |
means a release of the Software which corrects faults, adds
functionality or otherwise amends or upgrades the Software, but which does not constitute
a New Version;
|
|
"Support Request" |
means a request communicated by the Licensee to the Licensor via
the Support Forum, to report an Error and to request correction of the Error, or to request
some other support service or assistance;
|
|
"Support Services" |
means the support services, to be provided by the Licensor in
respect of the Software (including the provision of Updates), as set out in SCHEDULE 1; and
|
|
"Update" |
means any Support Release and/or New Version. |
| 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 outin 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 (together referred to as
"Quotes" and a reference to a "Quote" shall refer to a Licence
Quote or Additional Quote, as applicable), 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/ag-grid on the first Quote Effective Date by provision of an
activation key and anylogin 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/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 90 days, consisting of a trial period
of 60 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 Licensed
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 the currency
to be agreed between the parties and as set out in the relevant Quote.
|
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
doors 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 this agreement; 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
times, 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 other
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
reasonably 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 this Agreement.
|
|
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; or |
| (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.
|
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.
|
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.
|
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.
|
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.
|
| 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
|
| (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
force 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.
|
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.
|
| 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 request), 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;
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| (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
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| (e) |
procure that all associated persons (as
defined in the Act) of the Licensor will comply with clauses 18.10(a) to c).
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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.
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| 18.11 |
This agreement 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 this agreement 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 this agreement, provided always that nothing in this clause 18.11 will operate to limit or exclude
any liability for fraud or fraudulent misrepresentation.
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| 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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