END USER LICENSE AND MAINTENANCE AGREEMENT

 

PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE USING THIS SOFTWARE.  YOU INDICATE ACCEPTANCE OF AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING OR USING THIS SOFTWARE.  IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THIS SOFTWARE.

 

This End User License and Maintenance Agreement is made by and between Service Management Integrations Limited (SMIL) having registered offices at 48 Holywell Road, Studham, Bedfordshire, LU6 2PD and the Customer.

 

The purpose of this Agreement is to set out the terms and conditions under which SMIL shall provide to the Customer a software license for the ITSM Bridge product.

 

This agreement shall be effective from the Effective Date.

 

1.             DEFINITIONS

 

“Agreement” means this End User License and Maintenance agreement.

“Current Support Period” means the period from the Effective Date to 365 days after the Effective Date.

“Customer” means you, whether an individual or business entity.

“Customer’s Support Representatives” means the representatives of the Customer authorised to raise support tickets with SMIL.

"Documentation" means the current version of any documents provided with the Software whether in print or machine readable media, in effect as of the date of shipment

“Effective Date” means the date on which you accept this agreement.

“Equipment” means the client hardware on which the SMIL Software is installed.

“Enhancements” means all error correction releases, performance enhancement releases and/or functional improvement releases of the Software provided by SMIL.

"Operating System Software" means the operating system software on the Equipment.

“Order” means a written or electronic ordering document for the Software Materials.

“Product” means the Software Materials.

“SMIL’s Response Centre” means the group of technical consultants who will respond to tickets raised by the Customer’s Support Representatives with respect to queries or issues relating to the Product.

“SMIL Software” means the ITSM Bridge software owned by SMIL and available to all of SMIL’s customers, supplied to the Customer in object code, encrypted files, java binaries or password protected code

"Software" means the object code, encrypted code, java binaries or password-protected code versions of the SMIL Software.

“Software Materials” means the Software and Documentation.

"Software Support and Maintenance" means the software support and maintenance services provided to the Customer by SMIL in accordance with Clause 4 of this Agreement.

“Support and Maintenance” means Software Support and Maintenance to the Customer by SMIL 

"Third Party Software" means any software owned by a third party, and not by SMIL.

"Use" means to load, run, store, transmit or execute the Software.

 

2.         PROPRIETARY RIGHTS

 

2.1.   All proprietary rights in the Software Materials, and any modifications or copies thereof, are and shall remain vested in SMIL or its licensors.  All proprietary notices incorporated in, marked on, or affixed to any of the Software Materials shall be duplicated by the Customer on all copies of all or any part of those Software Materials and shall not be altered, removed or obliterated.

 

2.2.    SMIL, its Affiliates or licensors retain all right, title and interest to the Product and all related intellectual property and proprietary rights.  The Product and any third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws.  Customer may not remove any product identification, copyright, trademark or other notice from the Product.  SMIL reserves any rights not expressly granted to Customer.

 

3.         SOFTWARE LICENCE

 

3.1.   Subject to payment of the licence fee by the Customer in accordance with the payment terms specified in this agreement, SMIL grants to the Customer a non-exclusive, non-transferable, single-client production licence to Use the Software Materials for its internal administrative purposes for the term specified.  The Customer may use the Software on any server to which the licensed Equipment is connected. For the avoidance of doubt, the Customer does not have a right to use the Software Materials for time sharing, rental, sub-licensing, service bureau or third party training purposes.  The customer agrees not to install the Software on any server machine or any machine which would allow access to the Software from multiple client machines.

 

3.2.   The Software may be transferred temporarily to a back-up computer if the Equipment is inoperative.  The Customer may make one copy of each item of the Software Materials for archival or back up purposes, or as required for back up purposes upon giving written notice to SMIL.  The Customer will not modify the Software Materials, reverse engineer, disassemble or decompile the Software, or seek to reconstruct or discover any humanly readable form of the Software source code except to the extent allowed by applicable law despite this limitation; or except as specifically provided for in this Agreement, in any way reproduce, disclose, distribute or transfer any of the Software Materials or allow access to the Software by any third party.

 

3.3.    Copying or Use of the Software Materials other than as expressly authorised by this Agreement is not permitted.

 

3.4.    From time to time, SMIL may request the Customer to provide a certification to the effect that actual Use of the Software Materials is in complete compliance with the terms of this Agreement and any Supplement.  In addition, SMIL may, upon reasonable notice, perform an audit to determine compliance with the terms of this Agreement and any supplement.  If the number of copies is found to be greater than that contracted for, SMIL shall have the right to charge the Customer the applicable current list prices therefore as well as the reasonable expenses associated with such audit and the Customer will promptly pay SMIL for all additional licenses required to make the Customer compliant.

 

3.5.    Use of the Software materials is permitted on all the Customer's internal applications, that is, all applications that the Customer has built either for their own internal use or for one of their own customers as part of a managed services agreement where the application is hosted and managed exclusively by the Customer.  For the avoidance of doubt, the Software materials may not be used by the Customer on any of their customers' sites, (including consultancy engagements),  where the application is not hosted or managed by the Customer as part of their own internal IT infrastructure.

 

4.         SOFTWARE SUPPORT AND MAINTENANCE

 

4.1.   Where the Customer has purchased a permanent Licence, then Software Support and Maintenance is available from SMIL for an additional fee on an annual basis.  Where the Customer has purchased a term Licence then Software Support and Maintenance shall be provided by SMIL for the length of the term only.

 

4.2.   Subject to payment of the support and maintenance fee by the Customer where required, and  in accordance with the payment terms specified in this agreement, SMIL will provide Software Support and Maintenance for the Software. SMIL shall have no obligation to provide Software Support and Maintenance for any Third Party Software.

 

4.3.   Software Support and Maintenance entitles the Customers Support Representatives to: (i) raise tickets with the SMIL Response Centre relating exclusively to queries or problems with the Software and (ii) to receive all relevant Enhancements not separately marketed by SMIL or its licensors.

 

4.4.   The licence granted to the Customer under Clause 3 shall extend to each Enhancement received from SMIL.  The Customer shall have the same rights and obligations with respect to the Enhancements as it does with respect to the Software Materials under this Agreement and therefore any reference to Software or Software Materials in this Agreement shall be deemed to be also a reference to Enhancements. 

 

4.5.    Software Support and Maintenance entitles the Customers Support Representatives to submit a ticket of any discrepancy between the Software and the relevant documentation.  If submitting a ticket of such a discrepancy, the Customer shall provide SMIL with the following information:  a detailed explanation of the discrepancy, the steps required to reproduce the discrepancy, the severity of the problem, the type and version of the Software, and the relevant operating environment details.  Upon receipt from the Customer of such a ticket, SMIL shall use reasonable efforts to correct or circumvent the discrepancy provided that, after the introduction of a new generally available release of the Software, SMIL will support and maintain only the then current and the last major release of such Software.   For the avoidance of doubt, a major release is one that increments the release number by at least 1, i.e: 4.1, 4.2 etc would be part of major release 4, while 5.0, 5.1 etc would be part of major release 5.

 

4.6.    SMIL shall have no obligation to support or maintain the Software in the event that: (i) the Software is Used other than in accordance with the license terms in Clause 3 and the relevant Documentation, (ii) the Software is Used in conjunction with any software, hardware, media or supplies not specified by SMIL for use with the Software, (iii) the Customer modifies the Software, or (iv) the Software has been damaged as a result of an accident, natural disaster, fire or water, act of war, riot, strikes, lightning, electrical disturbance, damage during transportation by the Customer, or work performed by personnel other than SMIL employees, sub-contractors or licensors. 

 

4.7.    Where the Customer has purchased a permanent Licence, SMIL shall provide Support and Maintenance for the SMIL Software to the Customer for the Current Support Period, subject to payment of the Support and Maintenance fee by the Customer to SMIL in accordance with the payment terms specified in this agreement.

 

4.8.   The fee charged by SMIL for Support and Maintenance for any one-year period following the expiry of the Current Support Period (Renewal Support and Maintenance) shall be SMILs then current list price for the same.

 

4.9.   Where the Customer has purchased a permanent Licence, SMIL shall send to the Customer a quote for Renewal Support and Maintenance prior to the expiry of the Current Support Period.  

 

4.10. SMIL shall issue its invoice for Renewal Support and Maintenance upon receipt of the Customers purchase order, which invoice shall be payable by the Customer within thirty (30) days of the date of the same.  The Customer shall not be entitled to Renewal Support and Maintenance in the event that SMIL has not received a purchase order for such Renewal Support and Maintenance before the expiry of the Current Support Period.  

 

4.11. Notwithstanding the foregoing, the Customer may only purchase Support and Maintenance for the Software for as long as SMIL makes Support and Maintenance for the Software available to its customers in general.

 

4.12. In the event that the Customer cancels Support and Maintenance, any fee paid for the same will not be reimbursed upon such cancellation under any circumstances.

 

4.13. SMIL does not provide third-party support, meaning that it does not deal with questions or problems related to the usage of any Third Party Software. Customer accepts full responsibility to ensure that its employees and/or sub-contractors have the appropriate skills and training required to provide the level of support necessary for all Third Party Software installed by Customer or its suppliers.

 

5.         CONFIDENTIALITY

 

5.1.   Each party shall hold Confidential Information of the other in confidence. "Confidential Information" includes without limitation the terms of this Agreement, the Software Materials, any benchmark of the Software, all Documentation, and all methods or concepts utilised therein, plus all information identified by the disclosing party as proprietary or confidential. 

 

5.2.   All Confidential Information shall remain the sole property of the disclosing party.  Information will not be considered to be Confidential Information if (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by a party without access to Confidential Information of the other; (iv) known to the recipient at the time of disclosure; (v) produced in compliance with applicable law or a court order, provided the other party is given notice and opportunity to intervene; or (vi) it does not constitute a trade secret and five (5) or more years have elapsed since the date of disclosure. In the event of a breach of this Clause, the damaged party will be entitled to injunctive relief and/or a decree for specific performance and such further relief as may be proper.

 

6.             WARRANTY

 

6.1.   SMIL warrants that:-

a)     it is entitled to license the Software Materials to the Customer;

b)    the Software shall, for a period of ninety (90) days from the date of its delivery to the Customer, be capable of performing the functions described in the relevant Documentation in all material respects; and

c)     any Hardware, tapes, diskettes or other media provided by SMIL will be free of defects in workmanship and materials during normal use for a period of ninety (90) days from the date of their delivery to the Customer.

 

6.2.   Without prejudice to Clause 6.1 hereof, the Customer acknowledges that the nature of software in general is that it is not entirely error-free and consequently accepts that the existence of errors in the Software shall not, of itself, constitute a breach of any warranty given in Clause 6.1 unless the errors substantially impede the Customer's legitimate Use of the Software.

 

6.3.   SMIL shall use reasonable efforts (a) to remedy and/or correct any material non conformance between any Software and the corresponding Documentation and any material defect in the Hardware or media, or alternatively (b) to replace the non conforming Software or defective Hardware or media, provided SMIL is given, within the relevant warranty period, due notice of such non conformance or defect and is provided with all available supporting documents. 

 

6.4.   SMIL shall not be liable for any breach of warranty if caused by neglect, improper installation or testing of the Product (other than by SMIL), attempts by the Customer to repair or modify the Product or have the Product repaired or modified other than by SMIL, or any use of the Product other than in accordance with the Documentation.

 

6.5.   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT ALL WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITION OR WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR PURPOSE, ARE EXCLUDED.

 

7.         INFRINGEMENT INDEMNITY

 

7.1.   As long as the Customer provides SMIL with prompt written notice of such claim or action, offers SMIL sole control and authority over the defence or settlement of such claim or action, including all appeals, and provides complete information and reasonable assistance to defend or settle such claim, SMIL shall, at SMILs own expense, defend or settle, at SMILs option, any claim or action brought against the Customer based on a claim that any of the Software, as used by the Customer strictly within the scope contemplated by this Agreement, infringes a copyright or trade secret or a patent issued no later than 60 days prior to the date of the Order and shall indemnify the Customer to the extent resulting from any such claim or action.

 

7.2.   Should the Software become, or in SMILs opinion be likely to become, the subject of any such infringement claim, the Customer shall permit SMIL, at SMILs option and expense to: i) procure for the Customer the right to continue using the Software; ii) replace or modify the Software so that it becomes non-infringing; or iii) terminate the Customers right to Use the Software, in which case the Customer shall promptly destroy all copies of the Software and certify the same to SMIL, and SMIL shall refund to the Customer the license fee for the Software as depreciated from the Effective Date on a straight-line three year basis.

 

7.3.   SMIL shall have no liability for any claim of patent, copyright or trade secret infringement that is based on i) the Use of other than the latest version of the Software, if such infringement could have been avoided by the Use of the latest version; ii) the Use or combination of the Software with software, hardware or other materials not provided by SMIL, iii) Use of the Software in a manner other than that for which it was designed or contemplated as evidenced by the relevant Documentation; iv) any unauthorised modification by the Customer or a third party of the Software; or v) any compliance with designs, plans or specifications furnished by the Customer or on the Customers behalf.

 

7.4.   THIS CLAUSE 7.4 STATES THE ENTIRE LIABILITY OF SMIL AND THE CUSTOMERS SOLE AND EXCLUSIVE RIGHT TO RECOVER, WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, AND SMIL SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVED INFRINGEMENT.

 

 

 

8.         LIABILITY

 

8.1.   The Customer acknowledges that SMIL has entered into this Agreement at the Customer's request.  The Customer acknowledges that SMIL is acting only as a supplier of products and that it is the Customer's responsibility to verify that the Product it orders is suitable for its own requirements and to determine the suitability of any hardware platform on which the Software is to be run.  Except with respect to the protection provided by the express warranties in clause 8, the Customer assumes the entire risk as to results and performance of the Software.

 

8.2.   Without prejudice to Clauses 7, 8.3, 8.4, or 8.5 hereof, SMIL's maximum aggregate liability arising out of any claim in contract, negligence or other tort shall in no circumstances exceed the fee paid or payable by the Customer in relation to the Product giving rise to the claim unless SMIL' liability arises out of any claim relating to SMILs Support and Maintenance obligations hereunder, in which event, SMIL's maximum liability shall not exceed the Support and Maintenance fee paid or payable for the Support and Maintenance giving rise to the claim for the Support and Maintenance period during which the liability on the part of SMIL arose.

 

8.3.   SMILs maximum liability in contract, tort or otherwise for physical damage to the Customer's tangible personal property resulting from SMILs negligence shall not exceed one million pounds sterling (£1,000,000) per event or series of events.

 

8.4.   Neither SMIL nor its licensors shall be liable under this Agreement, any supplement or any collateral contract for any loss of business or goodwill, loss of income or profit, loss of, or damage to or corruption of data, work stoppage or impairment of other goods or for any special, indirect, incidental, exemplary or consequential loss or damages of any kind howsoever arising and howsoever caused, even if SMIL has been advised of the possibility of such damage or if such damage could have been reasonable foreseen.

 

8.5.   Nothing in this Agreement shall exclude or in any way limit (i) SMILs liability for fraud or (ii) SMIL's liability to the Customer for death or personal injury caused by SMILs negligence.

 

9.         TERM AND TERMINATION

 

9.1.   The term of this Agreement shall begin on the Effective Date and shall continue in force for an indefinite period unless terminated in accordance with Clause 9.2.

 

9.2.   Either party may, at its option, terminate this Agreement (including all licences granted under it) or any supplement attached hereto at any time by written notice to the other if: i) the other commits a material breach of contract which (if remediable) it has failed to remedy within thirty (30) days of receiving written notice from the terminating party requiring it to do so, save that in the event of a breach of contract by SMIL affecting the Product provided by SMIL to the Customer, the Customer shall be entitled to terminate the agreement; or (ii) the other becomes insolvent, has a receiver or manager appointed of the whole or any part of its assets or business or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction).

 

9.3.   On termination of any licence granted pursuant to this Agreement, the Customer shall cease Using the Software Materials and the Customer shall certify in writing to SMIL that all copies (in any form or media) of the Software Materials, whether or not modified or incorporated into other materials, have been destroyed or returned to SMIL.

 

9.4.   Termination of this Agreement or any Supplement executed hereunder shall not relieve the Customer's obligation to pay all fees incurred prior to such termination and shall not limit either party from pursuing any other remedies available to it.

 

10.      GENERAL

 

10.1. Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.

 

10.2. Neither party will be liable to the other for any failure to fulfil its obligations hereunder caused by circumstances outside its reasonable control.  If such circumstances continue for more than eight (8) weeks, either party may terminate this Agreement.

 

10.3. No delay by either party in enforcing any of the terms or conditions of this Agreement will affect or restrict that partys rights and powers arising under this Agreement.  No waiver of any term or condition of this Agreement will be effective unless made in writing.

 

10.4. If any of the provisions of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced.

 

10.5. Clauses 2, 5, 8 and 11, shall survive the termination of this Agreement.

 

10.6. Notices must be sent by pre-paid registered post to the address of the other party given at the top of this Agreement or to any other address as the parties may have notified each other during the period of this Agreement.

 

10.7. The Customer agrees not to export the Product in breach of any applicable export control regulations.

 

10.8. This Agreement including all attached supplements and any attachments or referenced documents forms the entire agreement between the parties relating to the Product and supersedes any previous proposals, purchase orders, correspondence, undertakings or other communications, whether written or oral, related to the subject matter hereof. However, this provision shall not operate to limit or exclude any liability for fraud. Any purchase order subsequently supplied by the Customer will be accepted for invoicing purposes only and any pre-printed terms and conditions on or attached to any such purchase order will have no force or effect.  Any amendment to this Agreement will not be effective unless agreed in writing and signed by both parties.

 

10.9. This Agreement will be governed by and interpreted in accordance with the laws of England and the parties agree to submit to the exclusive jurisdiction of the English Courts.

 

10.10.              The parties to this Agreement do not intend that any of its terms should be enforceable by any person not a party to this Agreement, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise

 

11.      PAYMENT TERMS

 

11.1. One hundred percent (100%) of the Product License Fee and one hundred percent (100%) of the Support and Maintenance Fee for the first year (if applicable) shall be invoiced by SMIL upon either receipt of an appropriate purchase order from the Customer or execution of this Agreement, whichever occurs earlier, and said Fee shall be paid by the Customer within thirty (30) days of the date of SMILs invoice for the same.

 

11.2. Payments shall be made in the same currency as that of the invoice raised by SMIL which will be either Pounds Sterling, US Dollars or Euros.  The Customer shall pay all applicable taxes (including Value Added Tax) arising from this Agreement at the rate and in the manner prescribed by law, excluding taxes based on SMIL net income. After notice, past due amounts owing from the Customer shall bear interest at the rate of one and half (1 and 1/2) per cent per month, or the maximum legal rate, if less. The Customer shall reimburse SMIL for all reasonable costs incurred (including reasonable legal fees) in collecting past due amounts owed by the Customer.