License Terms for Commercial Use
1. APPLICATION OF THESE LICENCE TERMS
1.2. These Zegami Solution Licence Terms only apply to the Customer if the Customer is using the Zegami Solution for Commercial Use. If the Customer is using the Zegami Solution as an individual wholly or mainly for his / her personal use (and not in connection with his / her trade, business, craft or profession, that of his / her employer or on behalf of an academic institution) (Non-Commercial Use) then the licence terms for Non-Commercial Use will apply instead.
1.3. These Zegami Solution Licence Terms shall:
- (a) apply to and be incorporated into any contract between Zegami and the Customer; and
- (b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade customer, practice or course of dealing.
2.1. In these Zegami Solution Licence Terms the following expressions have the meanings specified:
Account Information means passwords, usernames and any other information related to the User Account or the Zegami Solution;
Business Days means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Collection Data means the data inputted by the Customer or the Users for the purpose of using the Zegami Solution;
Commencement Date means the date on which Zegami communicates in writing that it accepts this Licence with the Customer;
Conditions means these terms and conditions set out in clauses 1 to 20 (inclusive);
Confidential Information means all information that is proprietary or confidential to a Party, however, and in whatever form, disclosed (whether in writing, orally or otherwise) including:
- (a) the terms of this Licence;
- (b) any information that would be regarded as confidential by a reasonable business person relating to the:
- (i) business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing Party; and
- (ii) operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing Party; and
- (c) any other information that is identified as being of a confidential or proprietary nature or which a reasonable person would consider being of a confidential nature;
Customer means the customer identified on the Sign Up Form;
Data Controller: has the same meaning given to that term (or the term controller) as set out in the Data Protection Laws;
Data Processor: has the same meaning given to that term (or the term processor) as set out in the Data Protection Laws;
Data Protection Laws means all applicable laws from time to time in force in the United Kingdom relating to the protection of personal information, including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and (once in force and for so long as it is directly applicable in the United Kingdom) the General Data Protection Regulation ((EU) 2016/679), and any laws substituting, re-enacting or replacing any of the foregoing, as amended or updated from time to time and in force in the United Kingdom;
Data Subject: has the same meaning given to that term as set out in the Data Protection Laws;
Evaluation Period means the period of time set out in clause 4.1;
Fees means the fees set out in the Sign Up Form, including any increase under clauses 6.2 and/or 14.8;
Hosting Provider means hosting service provider engaged by Zegami to enable Zegami to provide the Zegami Solution on a “software-as-a-services” basis;
Initial Subscription Term means the period of time set out on the Sign Up Form and commencing on the Commencement Date;
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Licence has the meaning given to it in clause 1.1;
Maximum Number of Users means the maximum number of Users, as set out on the Sign Up Form;
Maximum Storage means the maximum amount of data permitted to be stored on Zegami Solution, as set on the Sign Up Form;
Party means either Zegami or the Customer and Parties means both of them;
Personal Data: has the same meaning given to that term as set out in the Data Protection Laws; Permitted Purpose: means the use case(s) set out in the Sign Up Form;
Product Feedback means all comments, suggestions ideas, graphics, questions or other information submitted by the Customer to Zegami in relation to the Zegami Solution through the Website or the Zegami Solution;
Renewal Term has the meaning given to it in clause 15.2;
RPI means the retail price index as published by the Office for National Statistics from time to time;
Sign Up Form means either:
- (a) the sign up form as made available online for completion by the Customer via https://zegami.com/, and which has been completed and submitted by the Customer to Zegami; or
- (b) the sign up form populated by Zegami, and completed and submitted by the Customer to Zegami (either electronically or in hard copy), including the form attached to this document
and which forms part of this Licence;
Software means the online software applications used by Zegami in the Zegami Solution; Subscription Term means the duration of this Licence;
Support Services Policy means Zegami’s then-applicable support services policy for providing support in relation to the Zegami Solution, as may be amended by Zegami from time to time, and as made available to the customer from time to time or via the online portal accessible within the User Account;
User means an employee, agent or independent contractor of the Customer who is authorised by the Customer to use the Zegami Solution as an administrator or viewer in accordance with this Licence;
User Account means the Customer’s authorised Zegami account(s), whether administration or viewer accounts;
Website means https://zegami.com/; and Zegami Solution means the subscription services, printed materials and online documentation provided by Zegami to the Customer under the terms of this Licence as set out in the Sign Up Form.
2.2. In these Zegami Solution Licence Terms (except where the context otherwise requires):
- (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- (b) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
- (c) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it;
- (d) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
- (e) any phrase introduced by the words including, include, in particular or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- (f) a reference to writing or written includes email but not fax. if there is a conflict or incompatibility between the Sign Up Form and these Zegami Solution Licence Terms, then the following order of precedence shall apply:
- (i) the Sign Up Form; and
- (ii) these Zegami Solution Licence Terms.
3. ZEGAMI SOLUTION
3.1. Zegami shall, during the Subscription Term, provide access to and use of the Zegami Solution to the Customer on and subject to the terms of this Licence.
3.2. Zegami shall provide access details and passwords for the Users to the Customer within 3 Business Days after the Customer providing Zegami with each User’s name and email address.
4. RESTRICTED EVALUATION LICENCE
4.1. Subject to the terms and conditions of this Licence, Zegami grants to the Customer a personal, non-transferable, non-exclusive right to use 1 User Account via the Zegami Solution during the first 30 days of the Initial Subscription Term free of charge (the Evaluation Period). The Customer acknowledges and agrees that its access to the Zegami Solution will, or may, automatically “time out” (that is to say, cease to operate) at the end of the Evaluation Period if the Customer has not at that time given its payment details to Zegami or authorised Zegami to charge the Customer for the Zegami Solution.
4.2. Save for liability which cannot be excluded or limited by applicable law, the liability of Zegami to the Customer during the Evaluation Period, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Licence will not extend to (i) any of the following losses, whether direct or indirect: loss of business or profit, or loss of data or corruption of data, loss of or damage to goodwill; or (ii) any indirect or consequential damages or losses. The Customer agrees that it has sole responsibility for protecting the Collection Data during the Evaluation Period.
4.3 Subject to clauses 4.1 and 4.2, Zegami’s liability to the Customer during the Evaluation Period, whether in contract, tort (including negligence), breach of its statutory duty, or otherwise, arising under or in connection with this Licence shall be limited to $20 USD.
5. COMMERCIAL USAGE Licence
5.1. Subject to the Customer’s payment of the Fees, the terms of this Licence, and the restrictions set out in this clause, Zegami hereby grants to the Customer a non-exclusive, non-transferable right (without the right to grant sub-licences) to allow Users (subject to the Maximum Number of Users and any additional User Accounts purchased under clause 6) to access and use the Zegami Solution during the Subscription Term solely for the Customer’s internal business operations and for the Permitted Purpose.
5.2. All rights not expressly granted to the Customer are hereby reserved by Zegami and its respective licensors.
5.3. The Customer shall not grant access to the Zegami Solution to anyone other than its duly authorised Users.
5.4. In relation to Users, the Customer undertakes that:
- (a) it shall, and shall procure that its Users shall, keep confidential and not under any circumstances share the User Account Information. The Customer shall inform Zegami promptly upon the unintended or undesired disclosure of any portion of such User Account Information;
- (b) it shall not, and shall procure that its Users shall not, allow any User Account Information to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Zegami Solution;
- (c) it shall permit Zegami or Zegami’s designated auditor to audit the Customer’s use of the Zegami Solution for compliance with this Licence. Each such audit may be conducted no more than once per quarter, at Zegami’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
- (d) if any of the audits referred to in clause 5.4(c) reveal that any User Account Information has been provided to any individual who is not a User, then without prejudice to Zegami’s other rights, Zegami may disable such User Account;
- (e) prior to providing its Users with access to the Zegami Solution, it shall ensure that all its Users are aware of the terms of this Licence and any other terms relating to the Zegami Solution notified to the Customer by Zegami and comply with such terms as if they were a party to this Licence.
5.5. The Customer shall only use the Zegami Solution in:
- (a) connection with the Customer’s own internal business purposes;
- (b) combination with data originating from the Customer; and
- (c) a way which does not create any liability for Zegami.
5.6. The Customer shall not, and shall procure that the Users shall not:
- (a) except to the extent such activities are expressly agreed by the Parties or, where applicable, cannot be excluded by law:
- (i) copy, cut and paste, email, reproduce, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, sell or in any way commercially exploit any part of the Zegami Solution
- (ii) make public any part of the Zegami Solution other than Collection Data made public via the Software as part of the Zegami Solution;
- (iii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Software;
- (b) use the Zegami Solution to provide outsourced services to third parties or make the Zegami Solution available to any third party;
- (c) access all or any part of the Zegami Solution in order to build a product or service which competes with the Zegami Solution;
- (d) combine, merge or otherwise permit the Zegami Solution (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it; or
- (e) attempt to obtain, or assist third parties in obtaining, access to the Zegami Solution, other than as provided under this Licence.
5.7. The Customer shall, and shall procure that the Users shall, use due care and diligence to avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, trojan horses or any other self-propagating or other such program) that may infect or cause damage to the Zegami Solution or the systems of Zegami or otherwise disrupt the provision of the Zegami Solution.
5.8. The rights provided under this clause 5 are granted to the Customer only, and shall not extend to any subsidary or holding company of the Customer.
5.9. The Customer’s licence shall be limited to its internal business operations and (as applicable) the Permitted Purpose but, unless expressly stated otherwise in the Sign Up Form, it shall not permit to deploy or make available collections, datasets or other goods or services through use of the Zegami Solution, for or for the benefit of any third party customer of the Customer, including any deployment by way of the provision of a cloud based solution (and whether or not packaged or combined with other products).
6. ADDITIONAL USER ACCOUNTS
6.1. Subject to clause 6.2, the Customer may, from time to time during the Subscription Term, purchase additional User Accounts in excess of the Maximum Number of Users and Zegami shall grant access to the Zegami Solution to such additional Users in accordance with the provisions of this Licence.
6.2. If the Customer purchases additional User Accounts, Zegami shall invoice the Customer a pro-rated amount from the date of activation by Zegami for such additional User Accounts and the Customer shall pay Zegami the relevant fees for such additional User Accounts within 14 days of the date of Zegami’s invoice.
7. SUPPORT SERVICES
7.1. If requested by the Customer in writing (or as set out in the Sign Up Form), Zegami may, as part of the Zegami Solution and in consideration of an additional support fee as set out in the Sign Up Form, provide the Customer with Zegami’s standard customer support services during the hours of 9am to 5pm GMT on Business Days in accordance with Zegami’s Support Services Policy. Zegami has the right to amend the Support Services Policy from time to time.
8. ZEGAMI’S OBLIGATIONS
8.1. Zegami undertakes that the Zegami Solution will be performed with reasonable skill and care.
8.2. The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Zegami Solution contrary to Zegami’s instructions, or modification or alteration of the Zegami Solution by any party other than Zegami or Zegami’s duly authorised contractors or agents. If the Zegami Solution does not conform with the foregoing undertaking, Zegami will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, Zegami:
- (a) does not warrant that the Customer’s use of the Zegami Solution will be uninterrupted or error-free; or that the Zegami Solution and/or the information obtained by the Customer through Zegami Solution will meet the Customer’s requirements; and
- (b)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Zegami Solution may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.3. For the avoidance of doubt, where the Customer cannot access the Zegami Solution due to any of the following, Zegami shall not be in breach of its obligations under this Licence:
- (a) a fault or failure of the internet or any public telecommunications network;
- (b) a fault or failure of the Customer’s computer systems or networks;
- (c) any breach by the Customer of this Licence; or
- (d) any unauthorised usage.
9. CUSTOMER OBLIGATIONS
9.1. The Customer shall:
- (a) Provide Zegami with all the necessary:
- (i) co-operation in relation to this Licence; and
- (ii) acces to such information as may be required by Zegami, in order to provide the Zegami Solution;
- (b) comply with all applicable laws and regulations with respect to its activities under this Licence;
- (c) Ensure that no one under the age of 18 is allowed access to the Zegami Solution;
- (e) comply with any reasonable conditions of use of the Zegami Solution or the Software which appl from time to time and which have been communicated to the Customer in writing.
- (f) carry out all other obligations of the Customer set out in this Licence in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Zegami may adjust any agreed timetable or delivery schedule as reasonably necessary;
- (g) ensure that the Users use the Zegami Solution in accordance with the terms of this Licence and shall be responsible for any User’s breach of this Licence;
- (h) obtain and maintain all necessary licences, consents, and permissions necessary for Zegami, its contractors and agents to perform their obligations under this Licence;
- (i) ensure that its network and systems comply with the relevant specifications provided by Zegami from time to time; and
- (j) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Software via any hosting service, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9.2. If the Customer publishes any Collection Data on the internet using the Software, the Customer shall ensure that it includes the following statement: Software © Zegami 2018 – used under licence
10. COLLECTION DATA
10.1. The Customer shall own all right, title and interest in and to all of the Collection Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Collection Data.
10.2. The Customer hereby grants (and shall procure the grant of) a world-wide, royalty-free, non-transferable (save to the extent set out in this clause 10), non-exclusive, sub-licensable licence for the Subscription Term to Zegami to use host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, distribute and transmit the Collection Data:
- (a) to enable Zegami to provide the Zegami Solution;
- (b) for the purpose of developing and testing the Software and Zegami Solution provided to the Customer;
- (c) for the purpose of providing the Customer, and those with whom the Customer has shared their Collection Data (including the public), with the Zegami Solution; and
- (d) in connection with promotion and marketing of Zegami products and services.
10.3. The Customer acknowledges that Zegami has no control over any Collection Data hosted as part of the provision of the Zegami Solution and does not monitor the content of the Collection Data.
10.4. The Customer shall not, and shall procure that (i) the User shall not; (ii) the Collection Data does not; and (iii) the Customer’s use of the Zegami Solution does not:
- (a) breach any applicable law in the country in which it is uploaded and in every country in which such Collection Data could be viewed;
- (c) include any personally identifiable health data (HIPPA);
- (d) breach of any technology control or export laws and regulations, in particular US export laws and regulations;
- (e) infringe any third party Intellectual Property Rights;
- (f) breach any applicable Data Protection Laws;
- (g) include any material which is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, is otherwise illegal, or causes damage or injury to any person or property; or
- (h) infringes any confidentiality obligations,
10.5. Zegami shall notify the Customer immediately if it becomes aware of any allegation that any Collection Data may breach the terms of clause 10.4 or and Zegami may remove such Collection Data from the Zegami Solution without consulting the Customer.
10.6. Where the Customer publishes any Collection Data on the internet using the Software, the Customer warrants that it has the right to make such Customer Data publicly available.
10.7 The Software and/or the Website may contain links to and from the websites of third parties such as LinkedIn, Facebook, Twitter, Google and YouTube. The Customer acknowledges that such third parties have their own privacy policies and terms governing the use of any personal data submitted through their websites. Zegami will not be liable for the use of any personal data and/or Collection Data imported from and/or published on third party websites.
- CONFIDENTIAL INFORMATION
11.1. Each Party may have access to Confidential Information of the other Party under this Licence. Confidential Information of a Party shall not include information that:
- (a) is made public through the Software as part of a public collection;
- (b) is or becomes publicly known through no act or omission of the receiving Party;
- (c)was in the other Party’s lawful possession prior to the disclosure;
- (d) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
- (e) is independently developed by the receiving Party, which independent development can be shown by written evidence; or
- (f) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2. Each Party shall hold the Confidential Information of the other Party in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the Confidential Information of the other Party for any purpose other than the implementation of this Licence.
11.3. If a Party is required to disclose the Confidential Information of the other Party pursuant to clause 11.2, the Party shall, to the extent permitted by law, use its reasonable endeavours to give the other Party as much notice of this disclosure as possible, unless the giving of such notice is legally prohibited.
11.4. Each Party agrees to take all reasonable steps to ensure that the Confidential Information of the other Party to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Licence.
11.5. Each Party to this Licence shall as soon as reasonably practicable notify the other Party if it becomes aware of any breach of confidence by any person to whom it divulges any Confidential Information and shall give the other Party reasonable assistance in connection with any proceedings which the other Party may institute against such person for breach of confidence.
11.6. This clause 11 shall survive termination of this Licence for any reason.
12. SECURITY, HOSTING AND DATA STORAGE
12.0 This clause shall operate where a Customer has purchased a cloud hosted solution only. 12.1. Zegami shall use reasonable endeavours to maintain or procure the maintenance of technical or organisation security, in accordance with good industry practice, in respect of all Collection Data held from time to time on services under its custody or control including the services of any Hosting Provider engaged by Zegami for these purposes. Notwithstanding the foregoing (and without prejudice to clauses 8.2 and 8.3 of these Zegami Solution Licence Terms), Zegami shall not be liable to
12.1.1 the Customer for any security breach or loss or corruption of data due to any act, omission or default of the Customer or due to any matter or circumstance (including any extraneous attack or introduction of any virus) which occurs despite Zegami having used reasonable endeavours in accordance with this clause.
12.1.2. The Customer shall not store more than the Maximum Storage on the Zegami Solution.
12.3. If the Customer exceeds the Maximum Storage on the Zegami Solution, then Zegami:
- (a) shall notify the Customer that it is exceeding the Maximum Storage on the Zegami Solution;
- (b) and may, at its discretion:
- (i) require the Customer to archive Collection Data onto its own systems to reduce the amount of storage on the Zegami Solution to a level below the Maximum Storage; or
- (ii) charge the Customer a reasonable amount per month for each 1GB of storage by which the Customer exceeds the Maximum Storage on the Zegami Solution.
12.4. The Customer acknowledges that Zegami does not provide back ups of the Collection Data;
12.5. Without prejudice to the Customer’s other obligations, the Zegami Solution shall be provided on the following terms:
- (a) the Customer acknowledges that the Hosting Provider will be requested to host images on a highly resilient platform and to implement the data back-up regime as part of the specification for a hosting service but Zegami shall not be liable for any failure by the Hosting Provider to perform such tasks;
- (b) the Customer acknowledges that Zegami is dependent on a Hosting Provider to provide a hosting service. Zegami will use its reasonable endeavours to select a reputable Hosting Provider, taking into account the commercial aspects of the offering of such Hosting Provider including prices of the relevant services, but the Customer acknowledges that Zegami does not audit security measures of that Hosting Provider and is reliant on the terms of the contract between it and the Hosting Provider in this regard;
- (c) notwithstanding any other provision of this Licence, Zegami does not undertake or agree to provide a hosting service at a service level which exceeds those provided to Zegami by the Hosting Provider and will not in any way be liable to the Customer under this Licence or otherwise, for any acts, omissions or failures of the Hosting Provider;
- (d) the Customer acknowledges and agrees that the Zegami Solution may be inaccessible or inoperable from time to time including as a result of equipment malfunctions, repairs or replacements carried out by the Hosting Provider or for reasons beyond Zegami’s reasonable control;
- (e) this Licence shall automatically terminate if the agreement between Zegami and the Hosting Provider is terminated as a result of any breach by Zegami that is caused by the Customer’s breach of this Licence (including, but not limited to, a breach by the Customer of clauses 5.3 to 5.7 (inclusive) or clause 10.4) which entitles the Hosting Provider to terminate, suspend or take action against Zegami pursuant to its hosting agreement with Zegami); and
- (f) notwithstanding clause 16.7, if this Licence is terminated pursuant to clause 12.4, then Zegami may delete any of the Collection Data without following the procedure set out at clause 16.7.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. The Parties agree that as between Zegami and the Customer, Zegami and/or its licensors own all Intellectual Property Rights in the Zegami Solution, the Software and the Website. Except as expressly stated herein, this Licence does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Zegami Solution or Software.
13.2. Zegami confirms that it has all the rights in relation to the Zegami Solution and Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Licence.
13.3. The Customer hereby grants to Zegami an irrevocable, worldwide, exclusive, royalty free licence to use the Product Feedback for any commercial or other purpose whatsoever. The Customer hereby warrants that the Product Feedback shall not violate any Intellectual Property Right of a third party.
13.4. The Customer shall not remove any proprietary notices, labels, or marks on any component of the Zegami Solution (or the Zegami Solution or Website generally).
14.1. In consideration for access and use of the Zegami Solution, the Customer shall pay the Fees to Zegami.
14.2. Zegami shall invoice the Customer:
- (a) on the expiration of the Evaluation Period, for the Fees for the Initial Subscription Term; and
- (b) periodically in advance for the Fees for the relevant Renewal Term.
14.3. The Customer shall pay the Fees and any other charges, in full and cleared funds, invoiced within 14 days of the date of Zegami’s invoice.
14.4. The Fees and any other charges payable under this Licence are exclusive of any applicable sales tax and shall be paid free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law the Customer shall pay to Zegami such sum as will, after the deduction or withholding has been made, leave Zegami with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. If the Customer is required by law to make a deduction or withholding, the Customer shall, within 5 Business Days of making the deduction or withholding, provide a statement in writing showing the gross amount of the payment, the amount of the sum deducted and the actual amount paid. The Customer shall use all reasonable endeavours to assist Zegami to claim recovery or exemption under any double taxation or similar agreement with respect to any such deduction.
14.5. If the Customer believes its invoice is incorrect, it must contact Zegami in writing within 20 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit (any such adjustment or credit to be subject to verification by and agreement of Zegami).
14.6. If Zegami has not received payment within 14 days after the due date for payment, and without prejudice to any other rights or remedies of Zegami, Zegami may:
- (a) charge interest on overdue invoices at the rate of 4% per year above the base lending rate of the Bank of England, calculated on a daily basis from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgement; and
- (b) without liability to the Customer, suspend access to and use of the Zegami Solution and Zegami shall be under no obligation to provide the Zegami Solution while the invoice(s) concerned remain unpaid. The Customer will continue to be charged for the Fees and any other applicable fees during any period of suspension.
14.7. If the Customer’s or any User’s access to the Zegami Solution is suspended in accordance with clause 5.7 or 14.6(b), Zegami may impose a reconnection fee, (to cover labour and third party costs to return the Zegami Solution to the condition that it was before disconnection).
14.8. Zegami reserves the right to increase the Fees, in accordance with the Retail Prices Index (RPI) unless otherwise notified, on each anniversary of the Commencement Date, provided that it provides the Customer with 30 days’ notice of such increase.
15.1. This Licence commences on the Commencement Date and, subject to earlier termination in accordance with its terms, shall continue for the Initial Subscription Term.
15.2. This Licence will automatically extend for a further period equal in length to the Initial Term (each a Renewal Term) at the end of the Initial Term and each Renewal Term unless terminated in accordance with its terms.
16.1. Without affecting any other right or remedy available to it, either Party may terminate this Licence:
(a) immediately without reason at any time during the Evaluation Period; or
(b) without reason upon giving not less than 30 days’ prior written notice to the other Party which shall not expire earlier than the last day of the Initial Term or any subsequent Renewal Term.
16.2. Without affecting any other right or remedy available to it, either Party may terminate this Licence with immediate effect by giving written notice to the other Party if
- (a) other Party written notice upon any material breach of any provision of this Licence by the other Party, which is irremediable or (if such breach is remediable) fails to be remedied by the other Party within 10 Business Days of being notified by the other Party of such breach;
- (b) the other Party repeatedly breaches any of the terms of this Licence in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Licence;
- (c) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- (d) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other Party;
- (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
- (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party;
- (g) the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;
- (h) a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
- (i) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;
- (j) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(c) to clause 16.2(i) (inclusive); or
- (k) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.3. If Zegami terminates this Licence pursuant to clause 16.2 or the Customer terminates this Licence pursuant to clause 16.1(b), Zegami may keep the Fees for the unexpired term of the Initial Term or Renewal Term (as applicable).
16.4. If Zegami terminates this Licence pursuant to clause 16.1(b) then Zegami shall refund to the Customer the amount paid by the Customer in respect of the Fees relating to the period after the effective date of termination of this Licence.
16.5. Upon the termination of this Licence (howsoever occasioned):
- (a) any accrued rights or liabilities of either Party shall not be affected;
- (b) the Customer shall immediately cease all activities authorised by the Licence;
- (c) the Customer shall pay to Zegami any sums due to Zegami;
- (d) all rights and licences to the Customer from Zegami under this Licence shall immediately terminate;
- (e) all rights and licences to Zegami from the Customer under this Licence shall immediately terminate; and
- (f) clauses of this Licence which are expressly stated to or implicitly survive, or operate upon, termination, shall survive termination and continue in force. Additionally, the following provisions shall survive termination and continue in force: clauses 5 (Commercial Usage Licence), 11 (Confidential Information), 13 (Intellectual Property Rights), 14 (Payment), 16 (Termination), 17 (Data Protection), 18 (Warranties and Indemnities), 19 (Limitation of Liability), 20.1 (Force Majeure), 20.9 (Notices) and 20.10 (Governing Law and Jurisdiction).
16.6. Upon termination of this Licence, the Customer shall return to Zegami or destroy (and on request certify the destruction of) all User Account Information, Software, Confidential Information of Zegami and all other information and documentation received from Zegami or derived from the Zegami Solution and shall delete any such information or documentation held in electronic form.
16.7. Zegami may destroy or otherwise dispose of any of the Collection Data in its possession unless Zegami receives, no later than 30 days after the effective date of the termination of this Licence, a written request for the delivery to the Customer of the then most recent back-up of the Collection Data. Zegami shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Zegami in returning or disposing of Collection Data.
17. DATA PROTECTION
17.1. Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 17 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
17.2. If Zegami processes any personal data on the Customer’s behalf when performing its obligations under this Licence (the scope, nature, purpose and duration of which and the types of personal data will be set out in the Sign Up Form), the parties acknowledge that for the purpose of the Data Protection Laws, the Customer is the Data Controller and Zegami is a Data Processor. In any such case and without prejudice to the generality of clause 17.1:
- (a) the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to Zegami so that Zegami may lawfully use, process and transfer the Personal Data in accordance with this Licence on the Customer’s behalf;
- (b) the Customer shall ensure that any relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Laws and all other applicable data protection legislation;
- (c) Zegami shall process the personal data only on the written instructions reasonably given by the Customer from time to time unless Zegami is required by any laws applicable to Zegami to process the personal data. Where Zegami is relying on such applicable laws as the basis for processing, Zegami shall promptly notify the Customer of this before performing the processing required by such applicable laws unless these laws prohibit Zegami from notifying the Customer;
- (d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- (e) Zegami shall ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- (f) Zegami shall assist the Customer, at the Customer’s cost, in respect to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- (g) the Customer consents to Zegami’s use of sub-contractors or other service providers to provide the Zegami Solution. Zegami shall:
- (i) make available to the Customer a list of all sub-contractors or other service providers engaged in the processing of the Customer’s personal data on behalf of Zegami if so requested by the Customer.
- (ii) Zegami shall include, in any contract with such sub-contractors and service providers, provisions which are equivalent to those in this clause 17.
- (iii) Zegami shall give the Customer not less than 14 days’ notice of any additions or replacements to that list; and the Customer shall be entitled to object (on giving notice in writing to Zegami to be served within 14 days of Zegami’s notice informing the Customer of the change) to any such sub-contractor or service provider at any time. In the event that the Customer objects to a service provider or sub-contractor, then without liability for either party:
- (A) the Customer may terminate this Licence by providing written notice of termination with immediate effect where such notice of termination is served within 14 days of Zegami informing the Customer of the change and such notice to include an explanation of the grounds for non-approval of the sub-contractors or service providers; or
- (B) Zegami may terminate this Licence by providing written notice with immediate effect.
- (h) Zegami shall notify the Customer without undue delay on becoming aware of a personal data breach;
- (i) Zegami shall at the written direction of the Customer, delete or return the personal data and copies thereof to the Customer on termination of this Licence unless required by applicable law to store the personal data; and
- (j) Zegami shall maintain complete and accurate records and information to demonstrate its compliance with this clause 17 and allow for audits by the Customer or the Customer’s designated auditor.
17.3. The Customer agrees that Zegami may transfer Personal Data outside the United Kingdom or European Economic Area for the purpose of providing the Zegami Solution provided that all such transfers by Zegami provided that the following conditions are fulfilled:
- (a) the Customer or Zegami has provided appropriate safeguards in relation to the transfer;
- (b) the data subject has enforceable rights and effective legal remedies; and
- (c) Zegami complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any personal data that is transferred.
17.4. The Customer acknowledges that Zegami is reliant on the Customer for instructions as to the extent to which Zegami is entitled to use and process any personal data. Consequently, Zegami will not be liable for any claim brought by a data subject arising from any action or omission by Zegami, to the extent that such action or omission resulted directly from the Customer’s instructions.
18. WARRANTIES AND INDEMNITY
18.1. Each Party warrants to the other Party that it has full power and authority to enter into and perform its obligations under this Licence
18.2. The Customer also warrants that it will not:
- (a) permit an unauthorised third party access to the Zegami Solution and/or Software;
- (b) at any time during or after the Initial Subscription Term and any Renewal Term do any act, or give any assistance to any act, which may infringe or lead to the infringement of any Intellectual Property Right or other proprietary right in the Software; or
- (c) remove or obscure any proprietary rights notice contained on or incorporated in the Software.
18.3. Any warranties given by Zegami shall be subject to the Customer using the Zegami Solution in compliance with this Licence, and Zegami shall not be liable under this clause for, or required to remedy, any problem arising from any defect or error wholly caused by third party software used in connection with the Zegami Solution.
18.4. The Customer shall defend, indemnify and hold harmless Zegami against claims, actions, proceedings, losses, liabilities, damages, expenses, compensation paid, fines, penalties, sanctions, charges and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (i) the Customer’s use of the Zegami Solution; or (ii) any Collection Data which would constitute a breach of clause 10.4, provided that:
- (a) the Customer is given prompt notice of any such claim;
- (b) Zegami provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
- (c) the Customer is given sole authority to defend or settle the claim.
18.5 Zegami shall defend the Customer, its officers, directors and employees against any claim that the Zegami Solution infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
- (a) Zegami is given prompt notice of any such claim;
- (b) the Customer provides reasonable co-operation to Zegami in the defence and settlement of such claim, at Zegami’s expense; and
- (c) Zegami is given sole authority to defend or settle the claim.
- LIMITATION OF LIABILITY
19.1. Except as expressly and specifically provided in this Licence:
- (a) the Customer assumes sole responsibility for results obtained from the use of the Zegami Solution by the Customer, and for conclusions drawn from such use. Zegami shall have no liability for any damage caused by errors or omissions in any information, instructions or documents provided to Zegami by the Customer or the Users in connection with the Zegami Solution, or any actions taken by Zegami at the Customer’s direction;
- (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Licence; and
- (c) the Zegami Solution is provided to the Customer on an “as is” basis.
19.2. This clause 19 sets out the entire financial liability of Zegami (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
- (a) arising under or in connection with this Licence;
- (b) in respect of any use made by the Customer of the Zegami Solution or any part of it; and
- (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Licence.
19.3 Nothing in this Licence excludes the liability of either Party for:
- (a) death or personal injury caused by negligence;
- (b) fraud or fraudulent misrepresentation;
- (c) any breach of the undertakings implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- (d) any liability which cannot be excluded or limited by law.
19.4. Subject to clause 19.3:
- (a) Zegami shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
- (i) loss of profits or revenue;
- (ii) loss of business;
- (iii) depletion of goodwill and/or similar losses;
- (iv) loss or corruption of data or information;
- (v) loss of anticipated savings;
- (vi) pure economic loss; or
- (vii) exemplary or punitive damages, incidental, special, indirect or consequential loss, costs, damages, charges or expenses, however arising under this Licence; and
- (b) Zegami’s total aggregate liability in contract (including in respect of the indemnity at clause 18.5), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Licence shall be limited to the lower of:
- (i) the Fees actually paid by the Customer during the 12 months immediately preceding the date on which the claim arose; or
- (ii) the sum of $10,000.
20. GENERAL PROVISIONS
20.1. Force Majeure. Zegami shall have no liability to the Customer under this Licence if it is prevented from or delayed in performing its obligations under this Licence, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Zegami or any third party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. Zegami shall notify the Customer of such an event and its expected duration.
20.2. Variation. Except where provided under this Licence, no variation of this Licence shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
20.3. Relationship of the Parties. Nothing in this Licence is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- (a) The Customer shall not, without the prior written consent of Zegami, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights, licences or obligations under this Licence. Any attempt at such assignment, delegation or subcontracting shall be void.
- (b) Zegami may at any time assign, transfer, charge, subcontract or deal in any other manner all or any of its rights or obligations under this Licence. Severance. If any provision or part-provision of this Licence is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Licence.
20.5 Severance.If any provision or part-provision of this Licence is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Licence.
20.6. Entire Agreement.
- (a) This Licence constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- (b) Each Party acknowledges that in entering into this Licence t it does not rely on, and shall have no remedies in respect of, any undertaking, promise, assurance, statement, representation or warranty (whether made innocently or negligently) that is not set out in this Licence.
- (c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence.
- (d) Nothing in this clause 20.6 shall limit or exclude fraud.
20.7. Waiver. A waiver of any right under this Licence is only effective if it is in writing, and it applies only to the Party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
20.8. Third Party Rights. This Licence does not confer any rights on any person or party (other than the Parties and, where applicable, their successors and permitted assigns) pursuant to the Contract (Rights of Third Parties) Act 1999.
- (a) Notices under this Licence shall be in writing and sent to a party’s address or email address as set out in clause 20.9(b) below or such other address or email address as notified from time pursuant to this clause 20.9. Notices may be given, and shall be deemed received:
- (i) by first class post: 2 Business Days after posting;
- (ii) by airmail: 7 Business Days after posting;
- (iii) by hand: on delivery; and
- (iv) by email: at 9am on the first Business Day after transmission.
- (b) The contact details for notices to Zegami are as follows:
Title: Chief Financial Officer Address: Oxford Sciences Innovation – Grassroots, 46 Woodstock Road, Oxford, OX2 6HT
The contact details for notices to the Customer are those set out on the Sign Up Form.
- (c)This clause does not apply to notices given in legal proceedings or arbitration.
- (d) A notice given under this Licence is not validly served if sent by fax.
20.10. GOVERNING LAW AND JURISDICTION
- (a) This Licence and any dispute or claim arising out of or in connection with this Licence or its subject matter of formation (including non-contractual disputes or claims) shall be governed by and construed under the laws of England.
- (b) Each Party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Licence or its subject matter of formation (including non-contractual disputes or claims).