Note the type of License Licensee has agreed to will determine the number of Integrated Products in which the Licensed Software can be used and the duration of the License; see clause 2.4
- When used in this License, the following expressions shall have the meanings given to them in this clause:
"Affiliate" means with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person. For purposes of the foregoing, the term "control" (including its correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Authorised Sublicensee" means a third party engaged in the manufacture or supply of products which incorporate the Licensed Software or Integrated Products under License from Licensee entered into in accordance with clause 2.2.
"CartoType Software" means the map rendering software (in object code) known as "CartoType" made available to Licensee and any Modifications, updates or new releases to such software
"Confidential Information" means (i) the Licensed Software, Supporting Materials and all components thereof, (ii) business and technical information (if any), which Licensor discloses to Licensee relating to the Licensed Software, (iii) the terms and conditions of this License, and (iv) information relating to Licensor's plans for new or enhanced products or services.
"Fee" the amount set out in the Term Sheet for the type of License referred to in the Term Sheet and the rights granted in clause 2.1 and the support and maintenance services in clause 6, as such fee may be varied pursuant to clause 5.4.
"Integrated Product" means Licensee's own product or software incorporating, in object code only, the Licensed Software, a major release of an existing product or software shall constitute a new product or software
Intellectual Property Rights means all patents, petty patents, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
"License" means the terms and conditions in this agreement as amended or varied in accordance with those terms and conditions.
"Licensed Software" means the CartoType Software and the Source Code
"Modification" means any addition, deletion or modification (Modified shall be construed accordingly.)
"Party" or "Parties" means the party or parties to this License as the context admits.
"Permitted Use" means the use set out in clauses 2.1 and 3, as applicable
"SDK" means, collectively, the Licensed Software and Supporting Materials
"Source Code" means the elements of the CartoType Software made available to the Licensee in source code format and any Modifications, updates or new releases to such elements
"Supporting Materials" means the Specifications and other technical information made available by Licensor to Licensee as may be updated from time to time.
"Specifications" means the technical specifications made available by Licensor to Licensee that relate to the performance and/or functionality of the Licensed Software.
"Term Sheet" means the document specifying the License type, the fee and the Licensee's details which references these terms and conditions
"Unlimited License" means a license for unlimited Integrated Products as specified in the Term Sheet
"Working Day" means between 9.00 a.m. and 5.00 p.m. on a weekday other than a public holiday in England and Wales
- In this License:
- reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
- words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
- any reference to a Party to this License includes a reference to his successors in title and permitted assigns;
- the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of this License;
- a reference to a clause or sub-clause shall mean a clause or sub-clause in this Agreement.
- When used in this License, the following expressions shall have the meanings given to them in this clause:
- In consideration of the payment of the License Fee, during the Term, Licensor grants Licensee a non-exclusive limited License to: (i) use the CartoType Software and Supporting Materials to create, develop and test Integrated Product (ii) install and integrate copies of the CartoType Software into the number of Integrated Products for the type of License identified in the Term Sheet; (iii) manufacture, market and distribute the licensed number of Integrated Products to Licensee's customers; (iv) retain a reasonable number of copies of the CartoType Software, Supporting Materials and Integrated Product for archive, back up, maintenance, support and quality control purposes; (v) grant sub-licenses to contractors and other such persons or organizations to allow them to further integrate the licensed Integrated Product and have the same rights as Licensee under (ii), (iii), (iv) and this sub-clause (v).
- Where Licensee supplies its Integrated Product to a third party, Licensee shall ensure that it has a binding agreement between Licensee and the third party with regard to the CartoType Software and Supporting Materials whereby the third party has agreed to be bound to the Licensee on terms no less onerous than those entered into by the Licensee under this License with regard to the CartoType Software and Supporting Materials.
- Should Licensee cease to have the rights granted pursuant to clause 2.1 then it may continue to manufacture and distribute Integrated Products that have already been produced and are subject to existing orders.
- Where the Licensee has entered into a limited product License the CartoType Software may only be used in the number of Integrated Products specified in the Term Sheet. A new license is required to use the CartoType Software in any additional Integrated Product. Where the Licensee has entered into a license for unlimited Integrated Products, the provision of support and maintenance beyond the first year of the License is dependent upon payment of the Renewal Fee.
- To facilitate use of the CartoType Software the Licensee may be given limited access to the Source Code in which case the Licensee shall be permitted to: (i) access and download a copy of the Source Code; (ii) use the Source Code to create, develop and test Integrated Product. The Licensee acknowledges that the Source Code is a trade secret of the Licensor and that Licensee shall take all appropriate measures to protect the confidentiality of the Source Code as if it were a trade secret of the Licensee.
- Licensee shall use the Confidential Information and SDK and all other information and materials delivered to Licensee pursuant to this License solely for the Permitted Use and only in accordance with this License.
- Licensee shall be responsible and liable for the actions and omissions of its Authorised Sublicensees and contractors as though they were the actions and omissions of Licensee. If any Authorised Sublicensee or contractor of Licensee takes any action or omits to take any action that would breach this License if such act or omission were that of Licensee, then Licensee shall be deemed to be in breach of this Licensee as if such action or omission were or were not taken by Licensee.
- Unless expressly stated otherwise in this License, Licensee may not (i) assign, transfer, sub-license or grant any interest in this License to any third party (ii) modify, link or otherwise use open source software (or anything similar to open source software) ("OSS") in any interfaces or otherwise with the Licensed Software in such a way that would trigger any additional obligations with regard to the Licensed Software or under the applicable OSS license terms, (iii) distribute, supply, transfer the Licensed Software (in source or object code), or any whole or partial copy thereof, to any third parties other than as part of Integrated Products to Authorised Sublicensees, (iv) modify, decompile, or reverse engineer the Licensed Software or any portion thereof provided in object code form save to the extent expressly permitted by mandatory laws applicable to the Licensee and provided always that the Licensee shall notify the Licensor of any exercise by the Licensee of any mandatory legal right to modify, decompile, or reverse engineer the Licensed Software, (v) duplicate the Licensed Software other than in the Integrated Products except as permitted in clause 2.1 above (vi) remove or alter any proprietary legends or notices contained in the Licensed Software, or (vii) except as expressly permitted in clause 2.1, incorporate the Licensed Software or any portion thereof into any product or service made available to any third party.
- Licensee shall ensure that all proprietary notices appear on copies of the Licensed Software exactly as they appear on the originals and shall include in a reasonably prominent place in the Integrated Product (such as but not limited to the start up screen) a notice referring to the use of CartoType under license from the Licensor.
- Licensee shall pay the Fee in advance subject to receipt of Licensor's invoice. Payment of the Fee shall entitle the Licensee to the rights in clauses 2.1 and 3 and the support and maintenance services in clause 6.
- Licensees with an Unlimited License must pay the Renewal Fee in advance for support and maintenance for the Renewal Period. If the Renewal Fee is paid within 90 days after the start of the applicable Renewal Period then the Licensee shall pay an administration fee equivalent to 25% of the Renewal Fee. If a Licensee of an Unlimited License does not pay the Renewal Fee for a specific Renewal Period but seeks to renew support and maintenance for a subsequent Renewal Period, Licensor reserves the right to charge for Renewal Fees for all previous Renewal Periods for which the Renewal Fee has not been paid and an administration fee of 25% of the then current Renewal Fee plus interest on the previously unpaid Renewal Fees.
- The Fee is exclusive of any and all taxes, levies, excise, duties or imposts which, if payable, shall be added to the invoice and paid by the Licensee. If Licensee is obliged by any governing body to withhold or deduct any amount from the Fee, the Licensee shall provide Licensor with such certificate or document relating to the withholding or deduction such that Licensor may recover the same from Licensor's taxation authorities. If Licensor is unable to make such recovery, then the Licensee shall pay an additional amount to Licensor such that Licensor receives the Fee after any deductions, withholdings and recoveries.
- Licensor may increase the Fee each year by an amount that does not exceed the increase in the UK Retail Price Index for the 12 month period ending on 31 December in the previous year.
ANNUAL SUPPORT AND LICENSOR SERVICES.
- Provided the Licensee has paid the applicable Fees for the type of license, Licensor shall support and maintain the Licensed Software by using all reasonable efforts to fix any bugs or errors in the Licensed Software. Support shall include reasonable help in the use of the SDK. Support and maintenance shall not apply to any bugs or errors that are attributable to: the Integrated Product; use of the Licensed Software in combination with or linking to other software or data; or, Modifications to the Licensed Software that have not been supplied by the Licensor. Support or maintenance provided by Licensor outside of the scope of this clause 6 shall be the subject of a separate professional services agreement.
- Fixes for non material bugs or errors in the Licensed Software may be resolved by providing an update to the Licensed Software or a new release. If Licensor considers a bug or error to be material then it shall continue to work until it has either fixed the bug or error or created a suitable workaround. From time to time Licensor may make generally available updates to the Licensed Software or new releases of the Licensed Software using suitable version control and naming procedures and policies. Upon making available a new release of the Licensed Software, Licensor shall advise of the end date for support and maintenance for the preceding release ("End of Life"). Licensor shall not be obliged to provide any support or maintenance for a release beyond its End of Life.
- Licensor shall have no obligation to provide any support or maintenance services if Licensor has reasonable grounds to believe that the Licensee is in breach of any of the terms of this License.
- If the Licensee has signed up to an Unlimited License and fails to pay the Renewal Fee then the Licensee shall not be entitled to any support and maintenance unless and until all relevant charges have been paid in accordance with clause 5.2.
INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights in the SDK made available to Licensee, are and shall remain the property of Licensor or its licensors. Nothing in this License or in the making available of the SDK shall transfer any Intellectual Property Rights in the SDK to the Licensee.
- Licensee acknowledges that the SDK is only made available to Licensor and Authorised Licensees and contain information that is confidential to Licensor and/or its licensors, in particular but not limited to the Source Code. Licensee will not disclose Confidential Information, except to Licensee's own employees who need to know the same and Authorised Sublicensees. Licensee is responsible for compliance by its employees with this License. This clause does not apply to any portion of the Confidential Information that Licensee can demonstrate to Licensor's reasonable satisfaction (a) was developed by Licensee and in Licensee's possession prior to Licensee's receipt of the Confidential Information from Licensor, (b) is or becomes through no act or failure to act on Licensee's part, generally available to the public without limits or restrictions, (c) is lawfully obtained by Licensee from a third party without limits or restrictions on disclosure, (d) is independently developed by Licensee without reference to or use of the Confidential Information, or (e) is released for disclosure with the prior written consent of Licensor.
- Licensor warrants to the Licensee, as separate and independent warranties that:
- the Licensed Software, when delivered to the Licensee, will perform substantially in accordance with the Specification for a period of ninety (90) days from the date of receipt ("the Warranty Period"); and,
- the use of the SDK in accordance with the terms of this License will not infringe upon the rights of any third party.
- If there is a breach of any of the warranties in clause 9.1.2 then the Licensor shall, at its own cost and expense, either: (i) modify or replace the Licensed Software so at to remedy the breach; (ii) procure any additional rights that are required for the continued use of the SDK in accordance with the terms of this License; or (iii) terminate this License and refund to the Licensee all Fees paid by the Licensee in the 12 month period preceding termination.
- Licensee acknowledges that the Licensor does not warrant that the SDK shall be free from all errors or defects in functionality, performance or workmanship.
- The warranty at clause 9.1.1 does not extend to defects to the extent that they are attributable to: a defect or deficiency in, or a failure of, the product or equipment upon which the Deliverable is operated; or, the Deliverable having been modified other than by CartoType; or, the use of the Deliverable in conjunction with other software or data not supplied by CartoType; or, use for a purpose or in a context other than the purpose or context for which it was originally supplied by CartoType.
- Licensor warrants to the Licensee, as separate and independent warranties that:
LIMITATIONS ON LIABILITY.
- WITH RESPECT TO ALL OR ANY PART OF THE SDK AND ANY DATA OR SOFTWARE LINKED TO THROUGH THE LICENSED SOFTWARE, EACH PARTY HEREBY EXCLUDES ANY AND ALL TERMS, CONDITIONS, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED BY STATUTE, CUSTOM, DEALING OR LAW SAVE TO THE EXTENT THAT SUCH TERM, CONDITION, REPRESENTATION OR WARRANTY IS EXPRESSLY SET OUT IN THIS LICENSE.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR, ITS OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, THIRD PARTY SUPPLIERS OR LICENSORS BE LIABLE TO LICENSEE, ITS SUBLICENSEES, SUCCESSORS, ASSIGNS OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE, OR FOR ANY DAMAGES FOR LOSS OF GOODWILL, LOST REVENUE OR PROFIT, WORK STOPPAGE, OR PRODUCT MALFUNCTION, OR FOR ANY AND ALL OTHER SUCH DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS LICENSE, THE SDK (OR ANY USE OF THE FOREGOING OR OTHER SOFTWARE OR HARDWARE OR THE LIKE REFERENCED IN OR LINKED FROM THE LICENSED SOFTWARE), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- LICENSOR'S AGGREGATE LIABILITY FOR ALL LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE WHETHER RESULTING FROM BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACT OR OMMISSION SHALL BE LIMITED TO THE FEES PAID BY THE LICENSEE IN THE 12 MONTH PERIOD PRECEDING THE EVENT, OR IF MORE THAN ONE EVENT, THE FIRST IN THE SERIES OF EVENTS, WHICH GAVE RISE TO THE LIABLITY.
- THE LIMITATIONS ON LIABILITY IN THIS AGREEMENT SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR TO LOSS OR DAMAGE ARISING OUT OF FRAUD.
TERM AND TERMINATION.
- This License commences on the date stated in the Term Sheet ("Effective Date") and shall continue unless and until terminated in accordance with this clause 11. If the Licensor has signed up to an Unlimited License then the support and maintenance services in clause 6 shall cease on each anniversary of the Effective Date unless the Licensee has paid the Renewal Fee for the subsequent twelve month period ("Renewal Period").
- Either Party may terminate this License if the other Party is in breach of any term of this License and fails to cure such breach within thirty (30) days following receipt of written notice setting forth the details of such material breach. Additionally, Licensor may terminate this License immediately and without prior notice if: (i) Licensee commits any breach of clauses 2 or 3; or, (ii) Licensee enters into any insolvency process, or goes into liquidation, or suffers a receiver or administrator to be appointed or an analogous event occurs in any jurisdiction.
EFFECT OF TERMINATION.
- If this License is terminated by Licensor then (i) the rights granted to Licensee hereunder will terminate, (ii) Licensee shall no longer have access to the Source Code, (iii) Licensee must immediately discontinue all use of the SDK and all other items of Confidential Information, (iv) Licensee must immediately destroy, permanently delete or return to Licensor all copies of the SDK, (v) Licensee must remove the SDK from any services that make use of any of the SDK (v) Licensee must return to Licensor any other Confidential Information in its possession or control, (vi) Licensee must certify in writing to Licensor its compliance with this clause 12.
- Termination shall not affect the rights and liabilities of the parties that have accrued up to and including termination nor those clauses which either expressly or by implication should survive termination and such clauses shall continue in full force and effect including but not limited to clauses 8, 10 and 12.
- Termination shall not affect the marketing, distribution or supply of Integrated Products by Authorised Sublicensees that have lawfully obtained the Integrated Products in accordance with the terms of this License prior to its termination.
- This License constitutes the entire agreement between the Parties relating to its subject matter. This License supersedes any prior or contemporaneous oral or written communications, proposals, representations and warranties, and agreements between Licensee and Licensor regarding such subject matter.
- This License may be amended or modified only by a written instrument signed by an authorised representative of each Party.
- This License may not be assigned or transferred by Licensee, either directly or indirectly, without the prior written consent of Licensor.
- During the term of this License, Licensee grants Licensor the right to use Licensee's logo and name to identify Licensee as an SDK licensee.
- If any provision of this License is held to be unenforceable, this License will remain in effect with the provision omitted, unless such omission will frustrate the intent of the Parties, in which case this License will immediately terminate.
- Licensor shall be entitled to audit Licensee's compliance with the terms of this License by appointing an independent third party from a nationally recognised audit or consultancy firm in the United Kingdom to audit Licensee's use of the Licensed Software in compliance with this License and will give reasonable assistance to Licensor and its appointee in carrying out such audit. This right of audit shall remain in effect for a period of one year after termination of this License. The cost and expense of the audit shall be borne by Licensor unless the audit reveals a breach of the License by the Licensee in which case Licensee shall reimburse such costs and expenses without prejudice to any other rights that Licensor may have with regard to such breach.
- All notices required or permitted to be given under this License shall be in writing, and may be served by personal delivery; or by prepaid certified mail, return receipt requested; or by prepaid overnight air express delivery addressed to the last known business address of the respective Party or such other addresses as such Party may specify for this purpose in accordance with this License. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient if received prior to 5:00 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.
- The failure of either Party to enforce at any time any provision of this License shall not constitute a present or future waiver of such provision, nor in any way affect the ability of either Party to enforce each and every provision of this License thereafter.
- This License shall be governed by, and construed and interpreted in accordance with, the laws of the England and Wales.
- Any dispute, controversy or claim arising under, out of or relating to this License, the SDK and any subsequent amendments to this License, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, obligations post termination as well as non-contractual claims, shall be referred to and finally determined exclusively by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of a sole arbitrator. The place of arbitration shall be London. The language to be used in the arbitral proceedings shall be English. This clause shall not prohibit Licensor from taking interlocutory action to protect its confidential information or intellectual property right such as but not limited to the seeking of an injunction.
- Each Party shall comply, and will cause its personnel, Affiliates and contractors to comply, with the requirements of all applicable export laws and regulations.