End User Licence Agreement
WHEREAS: The Licensor has agreed to grant a non-exclusive non-transferable licence to the Licensee to use the Scripting Software package and all other rights hereinafter described all in accordance with this agreement Definitions For the purposes of this agreement the following definitions have effect. 1.1 “Software” includes CallScripter (4.5.x.x) and Synergy / Awaken Scripting / Awaken Intelligent Agent (4.6.x.x) Software package(s) and includes computer programs data files databases, data database schemas and other related information stored on computer media or otherwise and any associated printed documentation and any upgraded release of software; 1.2 “Licensor” means Awaken Intelligence Limited 1.3 “Licence Fee” means the fee payable by the Licensee to the Licensor on completion of this Agreement and, if applicable, on the monthly anniversary and any subsequent anniversary thereof during the term; 1.4 “Customer Interaction”: an interaction through the medium of voice, e-channels or traditional mail with the Licensee’s end user i.e. the Customer. 1.5 “Data Controller”: has the meaning set out in the Data Protection Act 2018. 1.6 “Data Processor”: has the meaning set out in the Data Protection Act 2018. 1.7 “Data Processing Agreement” per part 6 as appended to this Contract setting out the practises and processes the Licensor will adopt when processing Personal Data for which the Licensee is the Data Controller. Unless otherwise agreed in writing by both the Supplier and the Client, the Data Processing Agreement is incorporated into and will form part of this Contract as if set out in full in this Contract. 1.8 “GDPR”: EU Regulation 2016/679 (the General Data Protection Regulation [the GDPR]) a legal framework that sets guidelines for the collection and processing of personal information of individuals within the European Union (EU) and European Economic Area (EEA). [TZ1] 1.9 “Personal Data”: has the meaning set out in the Data Protection Act 2018 2 Licensor’s obligations 2.1 Licence: The Licensor grants to the Licensee a non-exclusive non-transferable licence in respect of the Software to be used by the Licensee for its own purposes. 2.2 Licensor to provide The Licensor shall deliver one copy of the Software to the Licensee within 21 working days. 3 Licensee’s obligations 3.1 Payment: The Licensee undertakes to pay to the Licensor the Licence fee on the due dates for payment. Interest shall accrue in respect of late payment at the rate of 5% above the base lending rate of Barclays Bank plc, from time to time in force, from the due date for payment until payment in full has been made (including interest). 3.2 Use of software by Licensee 3.2.1 The Licensee undertakes to use the Software only in accordance with this agreement for its own business purposes and otherwise not to copy, modify, disclose or transmit it, and not to reverse engineer, decompile or disassemble the programs, without prejudice to sections 50A 50B and 50D of the Copyright Designs and Patents Act 1988 and regulation 19 of the Copyright and Rights in Databases Regulations 1997. 3.2.2 Furthermore, the Licensee agrees that it will not sub-license the Software or any part thereof to any other person or organisation, nor will it sell, rent, lend or otherwise distribute or dispose of copies of the Software or any part thereof, nor use it or any part thereof to provide services to other persons or organisations, except in accordance with this Agreement and subject to a formal sub-licence in a form approved in writing by the Licensor. 4. Termination 4.1 This agreement shall begin when signed by both parties (“Commencement Date”) and will continue unless terminated in accordance with the terms set out below 4.2 This agreement will continue for the initial Term of 36 months, following expiry of the Term this agreement shall continue on a monthly rolling basis unless notice is received as detailed in section 4.3 and 4.4. 4.3 This agreement may be terminated by the Licensee upon giving not less than 30 days’ notice in writing to the Licensor such notice to expire at the end of the Term, or an anniversary of the Commencement Date if the Term has expired. 4.4 The Licensor may terminate this agreement by giving not less than 90 days’ notice to the Licensee such notice to expire and the end of the Term, or an anniversary of the Commencement Date if the Term has expired. 4.5 Upon termination the Licensee shall return or procure the return to the Licensor of the Software and all manuals and other media and documentation relating to the Software, and without retaining any copies of the Software or any of such manuals or other media and documentation other than that which is publicly available. 4.6 Either party may terminate this agreement, unless otherwise provided for herein, if the other party is guilty of a serious breach of the Agreement having failed to remedy that breach (if remediable) after being given one calendar months’ notice of the breach in writing by the party seeking to terminate the Agreement. Notice of termination shall be served in writing and signed by a director or Reseller of the party seeking to terminate. Any monies due at the time of termination shall remain payable and become due immediately upon termination, without prejudice to any other legal remedy available to either party. 4.7 This Licence may be terminated forthwith by notice in writing signed by the Licensor if the Licensee becomes insolvent or ceases trading or commits and act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of an amalgamation or reconstruction or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. 4.8 Any termination of this agreement pursuant to this clause 4 shall be without prejudice to any other rights or remedies a party may be entitled to under this agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this agreement which is expressly or by implication and tender come into or continue in force on or after such termination 5 Warranties and indemnities 5.1 The Licensor warrants that it has exercised reasonable skill and care in developing and writing the Software and that it has made every effort to minimise errors and ensure that the Software performs adequately and reliably and further warrants that for a period of ninety days after acceptance of the Software, the media on which it is recorded will be free of physical defects. The Licensee’s only remedy for breach of the warranties contained in this clause 5.1 shall be replacement of the defective media. 5.2 The Licensor does not warrant that the operation of the Software shall be uninterrupted or error-free. 5.3 Except to the extent required by law, the Licensor shall not be liable to the Licensee or to any other person for any loss or damage whatsoever or howsoever caused, except as provided in herein below, arising directly or indirectly in connection with this Agreement. 5.4 Notwithstanding the foregoing generality, the Licensor expressly excludes liability for direct, indirect or consequential, exemplary or special damages, losses or expense, including, but not limited to: 5.4.1 loss or damage to data or to other equipment or property, whether or not the same may be in the Licensor’s care custody or control; and 5.4.2 loss of profit, business revenue, goodwill or anticipated savings, whether notified to the Licensor by any means or not. 5.5 In the event that any exclusion of liability contained herein shall be held to be invalid for any reason and the Licensor becomes liable for loss or damage,said damage shall be limited to the fees paid in the current 1 year term. 5.6 The Licensor does not warrant that any third-party software included in the Software, nor any other third-party software (whether provided by the Licensee or otherwise) is free from defects. Licensor shall not be liable for any loss, damage or expense directly or indirectly attributable to any such defect or lack of fitness for purpose. 5.7 The Licensee warrants that it shall use the Software in accordance with the Licensor’s instructions and the Licensee shall indemnify the Licensor against any losses suffered by, or claims made against, the Licensor by any person other than the Licensee resulting from the loss, use or misuse of the Software by or with the express or implied authority or consent of the Licensee. 5.8 In the event that the Software is proved to infringe a third party’s intellectual property rights, the Licensor shall make the necessary modifications without delay to prevent further infringement if possible. Should the Licensee be prevented from using the Software permanently and/or become subject to third party claims in respect of such infringement, the liability of the Licensor is limited to a maximum of the total of the payments made to the Licensor in the current 1 year term under this agreement. If the Licensee becomes aware that the software infringes, or is claimed to infringe, a third party's intellectual property rights, the Licensee shall inform the Licensor of such at once in writing and provide the Licensor with such information and assistance to allow the Licensor to defend any claim made against it. 6 Miscellaneous 6.1 Assignment and sub-licensing The Licensee shall not assign or sub-license this agreement unless with the written agreement of the Licensor. 6.2 Confidentiality Both parties agree not to disclose confidential information obtained or received by them from the other party without the prior written consent of the other party. This obligation is to continue after termination of the agreement until such time as the other party grants a written release, or the information enters the public domain other than by default of the party owing an obligation of confidence to the other party. 6.3 Force Majeure Neither party shall be liable to the other for any delay in or failure to perform its obligations as a result of acts, omissions, events, accidents or acts of God beyond the reasonable control of the party to perform. If such delay or failure continues for at least six months, either party may terminate the agreement by notice in writing. 6.4 Data protection Both parties agree to comply with the provisions of the Data Protection Act 2018, and any other applicable law and regulations in relation to notification requirements as well as the collection, use, storage, processing, disclosure and transfer of personal data. The Licensor and the Licensee acknowledge that for the purposes of the Data Protection Act 2018 GDPR, the Licensee is the Data Controller and the Licensor is the Data Processor in respect of any Personal Data. 6.5 Computer viruses Both the Licensor and the Licensee agree to check their equipment at regular intervals for computer viruses using an up-to-date virus check program, and to immediately inform the other if a virus is detected and to give details of the action to be taken to erase the virus as well as check other equipment for the presence of the virus. 6.6 Third-Party Software Products The Licensee’s right to use third party software products purchased and installed by the Licensor on behalf of the Licensee is strictly conditional upon the Licensee agreeing to accept and observe the terms of any Licence Agreement (“Terms”) contained within such third-party software and/or its packaging and/or its documentation. It is the Licensee’s responsibility to acquaint itself with the Terms. Any use of such third-party software shall constitute acceptance of the Terms. If the Licensee does not accept such Terms, then its right to use such third-party software shall automatically terminate forthwith. In any event, the Licensee agrees to fully enforce such Terms upon its employees, agents and contractors and will indemnify the Licensor for all costs, expenses and damages arising out of any claims against the Licensor by any proprietor of such third-party software products and which arise from the Licensee’s failure to comply with such Terms. In the event that the Licensee is not the end user of the third-party software products, then the Licensee shall ensure that its customer or the end user adheres to such Terms by requiring its customer or the end user to sign an agreement incorporating the terms of and providing no lesser protection than this clause. The provision of support services by the Licensor or any other party does not confer on the Licensee any authorisation to use such third-party software. 6.7 Notices Any notice given under this Agreement by either party to the other must be in writing and delivered personally by recorded delivery post. 6.8 Waiver Failure by the Licensor to enforce any of the terms and conditions of this Agreement shall not be construed as a waiver of its rights. The Licensor shall not be under liability to the Licensee in respect of any circumstances beyond its reasonable control. 6.9 Solicitation The Licensee recognises and agrees that considerable time, effort and money have been expended by the Licensor in the training and development of all its employees, and the loss of any such employee resulting from solicitation of that employee by the Licensee will cause substantial inconvenience and economic damage to the Licensor. The Licensee undertakes and agrees that, during the term of this Agreement and for a period of two years following the expiry of this Agreement, it shall not directly or indirectly solicit away or attempt to solicit away any employee of the Licensor. Further, during the term of this Agreement the Licensee shall not employ any person who has, during a period of twelve months beforehand, been an employee of the Licensor without obtaining the prior written agreement of the Licensor. 6.10 Acceptance of Software If the Licensee does not provide written notice of any shortfalls within 30 days of installation, this will indicate acceptance of the Software. 6.11 Entire Agreement This Agreement represents the entire agreement between the parties and no variation of the terms of this Agreement shall be effective unless in writing and signed by a director or authorised officer of the company of each of the parties. 6.12 Dispute resolution If any dispute arises in connection with this Agreement, the parties agree to attempt to resolve such dispute be negotiation. In the event that a negotiated settlement cannot be reached, the parties agree to attempt to settle it by mediation in accordance with the model procedure of the Centre for Dispute Resolution. Neither party may commence court proceedings or arbitration until the mediation process has been exhausted and a settlement has not been reached. 6.13 Third party rights The parties agree, for the purposes of the Contracts (Rights of Third Parties) Act 1999 and otherwise, that their obligations under this agreement are intended to benefit each other only and no person other than the Licensor and Licensee shall have any rights under this agreement. 6.14 Applicable law The Parties hereby agree that this Agreement shall be construed in accordance within the English Law. The parties submit to the jurisdiction of the English Courts 6.15 Headings Headings to the clauses of this agreement are for guidance only and not to be used in the construction of any of the provision.
