ARTICLE I. DEFINITIONS; TERM; SCOPE
1. DEFINITIONS
Base Technology Vendor: A third party technology or software vendor whose technology and/or component thereof has been embedded and licensed as part of the Software and defined in Article
BMA: Business Modelling Associates UK Ltd, company number 8603063.
Confidential Information: As defined in Article IV(1)(A) hereof.
Customer/User: A party entering into the Software Subscription Licence Agreement for use of the Software and/or accessing the Software.
Discloser: The party disclosing Confidential Information.
Effective Date: The date of commencement of the User Software Licence.
Errors: Problems with the operation of the Software that prevent the Software from performing in accordance with the material requirements of the User Documentation, which problems can be replicated by BMA.
Recipient: The party receiving Confidential Information.
Software: BMA’s proprietary web based platform user interface (“UI”) known as Decisio, including any modifications and enhancements thereto and/or developments in respect thereof, and including, but not limited to any source code, Base Technology Vendor software, help files, user manuals, functional specification and other documentation.
Software Subscription Licence Fee: The fee payable by Customer/User to BMA in respect of the User Software Licence/s as set out in Article IV(5)(A) hereto.
Support Modifications: Software changes integrated with the Software to correct any Errors therein, but which do not alter the basic functionality of the Software or add new functions to it.
Support Term: The term during which BMA will provide support services in respect of the Software to Customer/User as set out in Article III, for the duration of the User Software Licence and Subscription Licence Term
Territory: The Territory in which the Software is accessed for use by the Customer/User.
Updates: Revisions of the Software that are not maintenance modifications or Upgrades. Updates do not include the addition of functionality.
Upgrades: New software incorporating revisions of the Software that provide substantial change in or addition to the functionality of the Software.
User Documentation: The functional and operational documentation relative to the Software.
User Software Licence/Licence: A specific licence for any activity requiring output from the Software and/or any of the embedded base technology components such as calculations, algorithms, reports or scenario management.
User Software Licence and Subscription Licence Term:
As defined in Article I(2)(A) hereof.
2. TERM
(A) The “User Software Licence and Subscription Term” commencing as of the Effective Date and continuing in effect for a period agreed in writing between the parties or unless terminated in terms of Article IV(7).
ARTICLE II. SOFTWARE LICENCE
1. LICENCE GRANT.
(A) BMA grants to Customer/User a non-exclusive, non-transferable licence (“User Software Licence/Licence”) to use the Software as follows:
(i) For a single internal business purpose; Customer/User is responsible for each use of the User Software Licence and must comply with the terms and conditions hereof;
(ii) only by Customer/User for its internal business use, and the Software and/or the User Software Licence is not transferable from Customer/User to any parent, subsidiary, affiliated entity or third party except with the prior written consent of BMA;
(iii) only for Customer/User’s benefit and not for the benefit of any third party, including without limitation, commercial timesharing or service bureau or other rental or sharing arrangements, data processing or management information or services;
(iv) only in the Territory in which it is primarily accessed and which may only be accessed in another country or territory with the prior written consent of BMA;
No other uses are granted hereunder and all rights not expressly granted to Customer/User hereunder are reserved by BMA.
(B) Customer/User may not:
(i) use the Software in contravention of this Agreement;
(ii) reproduce or otherwise make copies of any portion of the Software;
(iii) reverse engineer, disassemble, decompile or otherwise determine or attempt to determine, or have or attempt to obtain access to, the source code or internal design of the Software, or create derivative works based upon the Software (models created by the Software are not considered derivative works) or any part of the Software, or modify the Software;
(iv) distribute, sell, resell, assign, licence, sublicence, rent, lease, lend out or otherwise transfer, or commercially exploit or make available to any third party, any part of the Software;
(v) remove the patent, copyright, trade secret or other proprietary protection legends or notices that appear on or in the Software;
(vi) build a product or service that is competitive with the Software, build a product using similar ideas, features, functions or graphics related to the Software, or copy any ideas, features, functions or graphics related to the Software; or
(vii) violate any terms of this Agreement.
(C) Customer/User acknowledges that no source code or technical-level documentation is licensed under this Agreement.
2. OWNERSHIP. BMA and its Base Technology Vendors shall retain all right, title, interest, ownership, copyright and all other proprietary and intellectual property rights in and to their respective Software and technologies, and any modifications, enhancements, changes, maintenance modifications, Updates or Upgrades thereto. Customer/User does not acquire any rights, express or implied, in the Software and any User Documentation other than that specified herein.
3. WRONGFUL POSSESSION OR ACCESS. Upon knowledge of any unauthorised possession of, use of, or access to, the Software, Customer/User shall promptly notify BMA and furnish BMA with full details of such knowledge, assist BMA in preventing any recurrence thereof, and cooperate in any litigation or other proceedings reasonably necessary to protect the rights of BMA.
4. VERIFICATION. Upon BMA’s written request, Customer/User will certify in writing that Customer/User is using the Software in compliance with this Agreement and forward such certification to BMA. This certification shall be signed by an authorised officer of Customer/User. BMA shall be entitled to audit Customer/User’s use of the Software at BMA’s expense should BMA believe there has been a breach of this Agreement. Such audit will be conducted during regular business hours at Customer/User’s facilities and shall not unreasonably interfere with Customer/User’s business activities. If an audit reveals that Customer/User has underpaid fees to BMA, Customer/User agrees that it will pay any such underpaid fees immediately upon receipt of BMA’s invoice, in addition to reimbursing BMA for the cost of the audit.
ARTICLE III. SUPPORT SERVICES
(A) Support: Unless otherwise agreed in writing between the parties, BMA will provide first and second line software support for the Software within the Territory. BMA will use commercially reasonable efforts to provide telephone and/or electronic mail support Monday through Friday (excluding statutory holidays) during the hours of 8:00 a.m. – 5:00 p.m.(GMT).
(B) Modifications, Updates and Upgrades: BMA may from time to time, and at its sole discretion, and at no additional charge to Customer/User, provide modifications, Updates and Upgrades to the Software.
(C) Exceptions: The following are not covered by Support services:
(i) Any problem resulting from the misuse, improper use, alteration, or damage of the Software;
(ii) Any problem caused by modifications in any version of the Software not made or authorised in advance and in writing by BMA;
(iii) Any problem resulting from the combination of the Software with other programming or equipment to the extent such combination was not approved in advance and in writing by BMA; and
(D) Error Corrections: BMA will exert commercially reasonable efforts to correct all known Errors in the Software, provided Customer/User advises BMA in writing of such Errors within ten (10) business days after the occurrence of such Errors. BMA shall not be responsible for correcting any Errors caused, in whole or in part, by Customer/User.
(E) Support Policies Subject to Change. The Support policies described herein are subject to change at any time upon written notice to Customer/User.
(F) Technical Standards. BMA shall maintain the accessibility and performance of the web-based components of the Software in a manner consistent with capacity and performance standards set forth herein and current telecommunications and Internet industry standards, as the same may change from time to time. For measurements required herein, BMA may assume a stable, standard T1 connection to the Internet and measurements made at random times throughout the day. Upon request, BMA will provide Customer/User with a list of minimum recommended and technical PC standards for access to and use of the Software, and Customer/User acknowledges that optimal performance will not be available if recommended standards are not met by users of the Software. Under no circumstances will BMA be liable for any damage or loss resulting from a cause over which BMA does not have control, including, without limitation, failure of electronic or mechanical equipment or communications lines, telephone or other interconnect problems, general inoperability of the Internet, unauthorised access, theft, operator error, severe weather, earthquakes, and strikes or other labor problems.
ARTICLE IV. GENERAL
1. MUTUAL NON-DISCLOSURE.
(A) The parties agree that all proprietary information, including without limitation, the Software, any documentation relating thereto, and all proprietary information pertaining to either party’s business, marketing plans, finances, research and development, information technology, competition, customers and personnel data exchanged by the parties under this Agreement and reasonably to be considered confidential by the Discloser under the circumstances (collectively, “Confidential Information”) shall be maintained in confidence by the Recipient, and the Recipient shall use the Confidential Information of the Discloser only as authorised by this Agreement and for no other purpose (it being understood, however, that either party may disclose the Confidential Information to its employees or independent contractors who have a need to know, provided that same are made aware of the confidential nature of such information). In the event the Confidential Information is disclosed visually or orally, the information must be identified in writing as confidential at the time of such disclosure.
(B) The Recipient agrees to take the same measures it uses to protect its own Confidential Information, to prevent the unauthorised disclosure and use of the Confidential Information of the Discloser to third parties (except as permitted herein), and to prevent such unauthorised disclosure by its employees and independent contractors who are otherwise permitted access to the Confidential Information.
(C) The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
(i) was in the public domain at the time of Discloser's communication thereof to Recipient;
(ii) entered the public domain through no fault of Recipient subsequent to the time of Discloser's communication thereof to Recipient;
(iii) was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient;
(iv) was independently developed by Recipient as demonstrated by written records; or
(v) is required to be disclosed by court or government order and Discloser has been given notice of such order.
(D) The parties agree that a breach of these confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies.
(E) Notwithstanding any other provision herein to the contrary, Customer/User agrees that BMA may list the name of Customer/User, with its logo, as a licensee on its’ respective published lists of clients.
2. WARRANTY.
(A) For 90 (ninety) days after the Effective Date, BMA warrants that the Software will materially perform the functions described in the User Documentation. BMA shall have no responsibility for problems (i) that it is not notified of during this time period, (ii) in the Software to the extent caused by or arising out of the malfunction of Customer/User's equipment or other software products, (iii) arising from the Customer/User’s use of the Software contrary to our outside the scope of this Agreement. BMA warrants that, to the best of its knowledge, at the time of dispatch from BMA the Software is free of any and all viruses, Trojan horses, trap doors, or any other devices or mechanisms which are intended to halt, disrupt, or sabotage the operation of the Software.
(B) WARRANTY EXCLUSIONS. THIS AGREEMENT PROVIDES SOFTWARE LICENCE AND SUPPORT AND IS NOT A SALE OF GOODS. IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. EXCLUSIVE REMEDIES. For any breach of warranties contained in this Agreement, Customer/User’s exclusive remedy shall be the correction of Errors in the Software that cause breach of warranty.
4. INFRINGEMENT INDEMNITY.
(A) BMA agrees that if Customer/User is prevented from using the Software due to an actual or claimed infringement of a patent or copyright within Territory, then BMA, shall either:
(i) procure for Customer/User, at no expense to the Customer/User, the right to continue to use the Software;
(ii) replace or modify the Software, at no expense to the Customer/User, so that the Software becomes non-infringing, but substantially equivalent in functionality; or
(iii) in the event that neither (i) nor (ii) are reasonably feasible, terminate this Agreement as to the infringing Software.
This Article IV(4) contains BMA’s entire obligation to Customer/User with respect to any claim of infringement.
5. SUBSCRIPTION PAYMENTS.
(A) SOFTWARE SUBSCRIPTION LICENCE Fee. In consideration for the Licence granted in this Agreement, Customer/User hereby agrees to pay to BMA the Software Licence Fee agreed between the parties.
(B) Taxes. The fees listed in this Agreement do not include taxes. If BMA is required to pay any sales, use, property, excise, value added, gross receipts, or any other taxes levied on the Software, the User Documentation, the User Licence or the support services and maintenance under this Agreement, or on Customer/User’s use thereof, then such taxes shall be billed to and paid on demand by Customer/User.
(C) INVOICES. Unless otherwise specified in this Agreement to the contrary, Customer/User agrees to pay for all amounts due. Amounts which remain unpaid after the due date therefor will bear interest at 2% above the prime overdraft rate applicable from time to time. Customer/User shall also pay BMA’s cost of collection (including reasonable attorney’s fees and costs) for any overdue amounts.
(D) MISCELLANEOUS. All payments made hereunder are nonrefundable. Customer/User may not withhold or set off any amounts due under this Agreement. Failure to pay any fee when due shall constitute a material breach of this Agreement. All pricing terms in this Agreement are confidential and Customer/User hereby agrees that it will not disclose such terms to any third party.
6. EXCLUSION OF LIABILITY. IN NO EVENT SHALL BMA, ITS BASE TECHNOLOGY VENDORS, THIRD PARTY SUPPLIERS, ASSOCIATES OR NOMINATED RESELLER AND SUPPORT REPRESENTATIVEBE BE LIABLE TO CUSTOMER/USER FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF BMA, ITS BASE TECHNOLOGY VENDORS OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
7. TERMINATION. If either Party breaches this Agreement, the non-defaulting Party may give written notice to the other Party to rectify the breach within thirty (30) days after such notice. In the event that the defaulting party fails to rectify the breach within that time, the non-defaulting Party may then immediately terminate this Agreement. Upon termination, the User Software Licence shall be automatically and immediately revoked and terminated and all Software, User Documentation, Confidential Information and any other supporting materials will be immediately returned by Customer/User to BMA. If this Agreement is terminated by BMA pursuant to this paragraph, then in addition to any other damages to which BMA is entitled, BMA will retain any and all Software Licence Fees paid prior to such termination.
8. EXPORT ADMINISTRATION. Customer/User agrees to fully comply with all relevant export laws, anti-boycott laws and regulations (and similar laws and regulations) of the Territory (“Export Laws”) to assure that neither the Software, the Documentation, nor any direct product thereof are (A) exported, directly or indirectly, in violation of Export Laws; or (B) used for any purposes prohibited by Export Laws. Customer/User hereby agrees to indemnify, defend and hold BMA harmless from and against any losses, costs, liabilities, expenses, demands and/or damages, including reasonable legal fees, incurred by BMA as a result of failure by Customer/User to comply with this paragraph. BMA may, from time to time, deny Customer/User the right to use or continue to use the Licence in certain countries in order to protect their interests.
9. GENERAL.
(A) WAIVER; AMENDMENT. The waiver of any breach hereunder shall not constitute the waiver of any other or subsequent breach. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by both Parties.
(B) NOTICES. All notices shall be in writing and delivered: personally; by email; by overnight delivery service with an internationally recognised service that maintains a record of delivery; or sent by certified mail, postage prepaid, return receipt requested, to the party’s registered address or such other address as notified to the other party, and such notice shall be deemed to be made (a) if by email, when it is sent, (b) if delivered personally or by overnight delivery service, when confirmed received and (c) if mailed, on the fifth (5th) day after such mailing. To expedite order processing, Customer/User agrees that BMA may treat documents emailed by Customer/User to BMA as original documents.
(C) GOVERNING LAW. This Agreement, and all matters arising out of or related to this Agreement, shall be governed by the law of England and Wales.
(D) DISPUTES. The parties will use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved will be settled by participating in Alternative Dispute Resolution (“ADR”) procedures, which shall be as recommended to the Parties by the Centre for Effective Dispute Resolution.;however, either party may seek injunctive relief from any court of competent jurisdiction in England and Wales. The following specific provisions will also apply to the Arbitration: (a) the arbitrator will apply the law chosen above; (b) the prevailing party will be entitled to recover, in addition to any other amounts awarded, its reasonable attorney’s fees, costs, and expenses; (c) the costs of the Arbitration (other than the parties’ costs and expenses) will be allocated among the parties in the discretion of the arbitrator; and (d) the decision of the arbitrator will be in a writing stating the facts and law upon which the decision rests and will be given no later than ten (10) days following the conclusion of the necessary hearings. The Arbitration award will be final, non‑appealable and bind the parties, and any court having jurisdiction can enter judgment upon the award.
(E) ASSIGNMENT. This Agreement may not be ceded or assigned by Customer/User without the prior written consent of BMA first having been obtained and any attempted cession or assignment without the necessary written consent as aforesaid first having been contained shall be void. “Cession” and “assignment” shall include: (i) a sale of all or substantially all of the assets of Customer/User; and (ii) any other transaction or series of transactions which result in a change of more than 15% of the ownership of Customer/User.
(F) RELATIONSHIP. Nothing contained in this Agreement will be construed or implied to create an agency, partnership, employment or joint venture relationship between the Parties. At no time will either Party make commitments or incur any charges or expenses for or on behalf of the other Party.
(G) BINDING NATURE. This Agreement will inure to the benefit of BMA and its successors, assigns and suppliers.
(H) SEVERABILITY. If any provision or portion thereof of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.
(I) AUTHORITY. Each party hereby represents and warrants that it has the legal power and authority to enter into this Agreement.
(J) SURVIVAL. The provisions of the following Articles shall survive termination of this Agreement: II(1)(B), II(2), II(3), II(4), IV(1), IV(2)(B), IV(3), IV(5), IV(6), IV(7) and IV(9).