End User License Agreement
DATE: ________________________ (the “Effective Date”)
This Agreement is made between:
(1) PILOTBEAN LTD, a company registered in England and Wales with registered company number 05182324, whose registered office is located at 138 Kingsland Road, London, E2 8DY
(2) [INSERT LICENSEE NAME] a company incorporated and registered in England and Wales with company number [INSERT COMPANY NUMBER] whose registered office is at [INSERT ADDRESS] (“Licensee”).
(together described as "the parties")
WHEREAS IT IS HEREBY AGREED AS FOLLOWS:
- “Documentation” means the electronic user manual supplied on the media on which the Software is supplied;
- “License Fee” means the license fee payable to the PilotBean set out at Schedule 1;
- “Licence Agreement” means this license agreement and Schedule;
- “Minimum Requirements” means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation and/or in the Schedule attached;
- “Permitted Number” means the number as set out in the Schedule of PCs/laptops and/or users in respect of which the Licensee is granted a licence to the Software;
- “Schedule” means the schedule attached hereto;
- “Software” means the object code form of the software set out in the Schedule to this Licence Agreement together with any bug fixes, enhancements, or other modifications of the Software provided to Licensee under a separate support and maintenance agreement that may be agreed between the parties;
GRANT OF RIGHTS; RESTRICTIONS
- Subject to all the terms and conditions of this Licence Agreement and in consideration for the License Fee, PilotBean hereby grants Licensee a perpetual, worldwide, nonexclusive, nontransferable license to install the Software and use it in accordance with the Permitted Number for its own internal business purposes only. This licence is in respect of use of the Software by the Licensee only and no subsidiaries or holding company of the Licensee may use the Software.
- Except as expressly permitted in this Licence Agreement, Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (iii) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licensee's right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of PilotBean affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Licence Agreement.
- Licensee agrees, subject to reasonable prior notice, to give PilotBean such access and assistance to Licensee's systems as may be necessary to confirm that the number of PCs/laptops and/or users does not exceed the Permitted Number. In the event that the Licensee's use of the Software exceeds the Permitted Number, the PilotBean shall be entitled to revoke licence in respect of the Software and to terminate this Licence Agreement.
- PilotBean has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence Agreement conveys a limited licence to use the Software and shall not be construed to convey title to or ownership of the Software to Licensee. All rights in and to the Software not expressly granted to Licensee are reserved by PilotBean.
- In consideration for the licence for the Permitted Number granted to Licensee hereunder, Licensee shall pay PilotBean a one time non-refundable License Fee specified in the Schedule. The Licence Fee shall be due and payable on the Effective Date and is exclusive of VAT or other sales tax. If any applicable law requires Licensee to withhold amounts from any payments to PilotBean hereunder, (i) Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish PilotBean with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, PilotBean receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount PilotBean would have received and retained in the absence of such required deduction or withholding.
TERM AND TERMINATION
- This License Agreement shall commence on the Effective Date and continue in effect indefinitely, unless and until terminated in accordance with this Clause 5.
- PilotBean shall be entitled to (a) immediately terminate this Licence Agreement upon written notice; and (b) permanently prohibit the Licensee and/or the IP addresses used by the Licensee from making any use of and/or accessing the Software in the event the Licensee is or the PilotBean has reasons to be believe that the Licensee is (i) using the Software to commit a criminal act or to cause nuisance or annoyance or inconvenience to or harass others including without limitation, to engage in hacking activities; and (ii) using the Software and/or doing an act or series of acts that shall or may reasonably be deemed to infringe any patents, copyrights, trademarks, design rights or any other intellectual property rights or other rights of any third parties.
- Upon any termination of this Licence Agreement, (a) the rights and licences granted to Licensee herein shall terminate; and (b) clauses 1, 3, 4 (to the extent of unpaid obligations), 5.2, 7 and 8 shall survive any termination of this Licence Agreement.
REPRESENTATIONS AND WARRANTIES
- To the maximum extent permitted by applicable law, the Licensee acknowledges and agrees that the Software are used by the Licensee at the Licensee's sole risk and are provided 'as is' without warranty of any kind, either express or implied, including, but not limited to, any (if any) implied warranties of merchantable quality, conditions of fitness for a particular purpose and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed. PilotBean does not guarantee, warrant or make any representation that the functions contained in the Software will meet the Licensee's requirements, or that the operation of the Software will be uninterrupted or error-free. Furthermore, PilotBean does not guarantee, warrant or make any representation regarding the use or the results of the use of the Software in terms of their correctness, accuracy, reliability, currentness or otherwise. No oral or written information or advice given by PilotBean or an authorised representative of PilotBean shall create a warranty.
- The Licensee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.
LIMITATION OF LIABILITY
- Subject to clause 7.5, the maximum aggregate liability of the PilotBean with respect to any claims arising out of or in connection with this Licence Agreement shall be limited in the aggregate to the Licence Fee paid by the Licensee to the PilotBean under this License Agreement.
- In no event shall PilotBean be liable for any special, indirect, incidental, or consequential damages, loss of profits or goodwill, business or business benefit, loss of any anticipated savings, or the cost of procurement of substitute products by the Licensee even if advised of the possibility of such damages.
- In no circumstances shall the PilotBean be liable for any failure of the Software to perform in accordance with the Documentation, or at all, resulting from a failure by the Licensee to comply with the Minimum Requirements or the instructions set out in the Documentation.
- The Licensee acknowledges that whilst the Software may be used in combination with third party software, the PilotBean bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the Software to integrate with the Licensee's or third party's software.
- For the avoidance of doubt, nothing in this Licence Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
- Licensee shall not assign this Licence Agreement, in whole or in part, without the written consent of PilotBean.
- Licensee consents to the use by PilotBean of Licensee's name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Licensee and PilotBean.
- This Licence Agreement and its performance shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the courts of England.
- Licensee agrees that because of the unique nature of the Software and PilotBean's proprietary rights therein, a demonstrated breach of this Licence Agreement by Licensee would irreparably harm PilotBean and monetary damages would be inadequate compensation. Therefore, Licensee agrees that PilotBean shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.
- Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by email or facsimile (in all cases to be confirmed by letter posted within 12 hours) to the address of the other set out or referred to in this Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email or facsimile) upon the expiration of 12 hours after dispatch.
- If any provision of this Licence Agreement or the Software thereof is declared void, illegal, or unenforceable, the remainder of this Licence Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
- Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party's right thereafter to enforce each and every term and condition of this Licence Agreement.
- Neither PilotBean or the Licensee shall be liable for any breach of this Agreement resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, wrecks or delays in transportation, inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”). Each of PilotBean and the Licensee agree to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than 13 weeks then the party not in default shall be entitled to terminate this Agreement. Neither PilotBean nor the Licensee shall have any liability to the other in respect of such termination as a result of an Event of Force Majeure.
- This Licence Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by Licensee shall supersede this Licence Agreement. Each of the parties acknowledges that in entering into this Licence Agreement on the terms set out herein it has not relied on or been induced to enter into this Licence Agreement by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this Licence Agreement other than those expressly set out in this Licence Agreement.
Software provided on a 3 month trial. License fee payable 3 months after commencement of 'go live' date should the licensee wish to continue using the software.
All terms in this agreement are applicable during trial period.