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 Customer’s 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
Customer’s 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 SMIL’s’
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 Customer’s 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 SMIL’s own expense,
defend or settle, at SMIL’s 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 SMIL’s opinion be likely
to become, the subject of any such infringement claim, the Customer shall
permit SMIL, at SMIL’s 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 Customer’s
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 Customer’s behalf.
7.4. THIS CLAUSE 7.4
STATES THE ENTIRE LIABILITY OF SMIL AND THE CUSTOMER’S
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 SMIL’s 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. SMIL’s maximum liability in contract, tort
or otherwise for physical damage to the Customer's tangible personal property
resulting from SMIL’s 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) SMIL’s liability for fraud or (ii) SMIL's
liability to the Customer for death or personal injury caused by SMIL’s 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 party’s 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 SMIL’s 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.