EULA - Intent Company

END USER LICENCE AGREEMENT

LICENCE TERMS

DEFINITIONS AND INTERPRETATION
1. The definitions and rules of interpretation in this clause apply in this Agreement:

“Affiliate”
1. Includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
“Business Day”
1. Any day which is not Saturday, Sunday or a public holiday in the United States.
“Business Hours”
1. The hours of 8.00 am to 6.00 pm during a Business Day.
“Commencement Date”
1. The commencement date of this Agreement, as stated on the Front Sheet.
2. “Documentation”

The operating manual and user instructions in eye-readable form, made available to the Licensee for aiding the use of the Software.

“Fault”
A defect or fault in the Software in consequence of which it fails, materially, to conform to the Specification.
“Fees”
1. The Licensors charges payable by the Licensee to the Licensor.
“Intellectual Property Rights”
1. All patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
“Licence”
The licence granted to the Licensee pursuant to clause 2.2 of this Agreement.
“Licence Terms”
1. These licence terms.
“Licensed Materials”
1. The Software and the Documentation.
“Maintenance Release”
1. A release of the Software that corrects faults, adds functionality, or otherwise amends or upgrades the Software, but which does not constitute a New Version.
“New Version”
1. Any new version of the Software which from time to time is publicly marketed and offered for purchase by the Licensor in the course of its normal business, being a version, which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

“Software”
The computer programs listed on the Front Sheet and any Maintenance Release, which is acquired by the Licensee during the subsistence of this Agreement.

“Specification”
1. Means the specification of the Software contained in the online Documentation.
“Standard Support Services”
1. The support services described in clause 4.
“Term”
1. The term of this Agreement set out in the Front Sheet.
“Use”
1. As appropriate, either the reading and possession of the Documentation or the loading and subsequent processing of and use of the Software in object code form in accordance with the terms and conditions of this Agreement.

The headings in this Agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
Unless the context otherwise requires:
1. references to the Licensor and the Licensee include their permitted successors and assigns;
2. references to statutory provisions include those statutory provisions as amended or re-enacted;
3. references to one gender includes a reference to the other genders; and
4. references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them.
In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules, appendices or Front Sheet, the provision in the body of this Agreement shall take precedence.
Words in the singular include the plural and those in the plural include the singular.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
LICENCE
1. In consideration of the Fees, the Licensor grants to the Licensee a non-exclusive licence for the Term to Use the Licensed Materials, including Use by the Relevant Affiliates, subject to the terms and conditions contained in this Agreement.
2. The Licensee shall Use the Licensed Materials for the purpose of processing the Licensee’s data for the normal business purposes of the Licensee.
3. Save for the Relevant Affiliates, the Licensee shall not permit any third party to use the Licensed Materials nor use the same on behalf of or for the benefit of any person other than an employee of the Licensee or the Relevant Affiliates.
4. The Licensee may not use the Licensed Materials other than as specified in clause 2.1 and clause 2.2 without the prior written consent of the Licensor, and the Licensee acknowledges that additional fees may be payable on any change of use approved by the Licensor.
5. Save as expressly stated in this clause 2, the Licensee has no right (and shall not permit any third party) to:
  1. copy the Software (save in relation to such copying by the Licensee as is reasonably necessary for backup purposes and provided it takes all necessary steps to prevent unauthorised copying);
  2. adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Licensee, save where the Licensor is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Licensee shall request the Licensor to carry out such action or to provide such information (and shall meet the Licensor’s reasonable costs in providing that information) before undertaking any such reduction; or
  3. use any information provided by the Licensor or obtained by the Licensee during any reduction permitted under clause 2.6(b) to create any software whose expression or functionality is substantially similar to that of the Software nor use such information in any manner which would be restricted by any Intellectual Property Right subsisting in it.
6. The Licensee shall not:
  1. sub-license, assign or novate the benefit or burden of this Agreement in whole or in part;
  2. allow the Software to become the subject of any charge, lien or encumbrance; or
  3. deal in any other manner with any or all of its rights and obligations under this Agreement,

without the prior written consent of the Licensor.

The Licensee hereby acknowledges that it is licensed to use the Licensed Materials only in accordance with the express terms of this Agreement and not further or otherwise.
The Licensor may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Licensee. The Licensee shall provide all reasonable assistance to the Licensor in effecting the arrangements contemplated by this clause, including the execution of any documents reasonably required by the Licensor.

STANDARD SUPPORT SERVICES
1. In consideration of the Fees and subject to continuing compliance by the Licensee with the terms and conditions of this Agreement, the Licensor shall provide Licensee with all Maintenance Releases generally made available to its licensees. and provide support during Business Hours.
2. The Licensor shall inform the Licensee of any New Versions and shall offer to sell such New Versions to the Licensee on the terms on which they are generally made available by the Licensor to its licensees.
FEES
1. The Licensee shall pay to the Licensor the Fees as outlined in the accepted and signed Proposal document, within thirty (15) days of the receipt of the relevant invoice.
2. The Fees include the Licensor’s charges for:
  1. the Licence for the Initial Term; and
  2. the Support Services for the Initial Term.
3. All sums payable under this Agreement are exclusive of any relevant local and/or state sales taxes, for which the Licensee shall be responsible.
CONFIDENTIALITY AND PUBLICITY
1. Each party shall, during the Term and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
2. The terms of this Agreement are confidential and may not be disclosed by the Licensee without the prior written consent of the Licensor.
LICENSOR’S WARRANTIES
1. The Licensor warrants that the Support Services shall be performed with reasonable skill and care.
2. The Licensor does not warrant that the use of the Software will be uninterrupted or error-free.
3. The Licensee accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Licensee. The Licensor shall not be liable for any failure of the Software to provide any facility or functionality not specified in the Specification.
4. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or correspondence with samples or descriptions.
LIMITS OF LIABILITY
1. Except as expressly stated in clause 7.2:
  1. the Licensor shall have no liability for any losses or damages under or in connection with this Agreement or any collateral contract, whether in contract, tort (including negligence) or otherwise howsoever arising, which fall within any of the following categories:
    1. any indirect, consequential or special loss (even though the Licensor was aware of the circumstances in which such loss could arise);
    2. loss of profits;
    3. loss of contracts;
    4. business interruption;
    5. loss of anticipated savings;
    6. loss of business opportunity;
    7. loss of goodwill;
    8. loss or corruption of data,

provided that this clause 8.1(a) shall not prevent claims for loss of or damage to the Licensee’s tangible property that fall within the terms of clause 8.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (viii) inclusive of this clause 8.1(a); and

the total liability of the Licensor, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed the lesser of:
1. a sum equal to 125% of the Fees (paid or payable); or
2. £2,000,000.
The exclusions in clause 7.4 and clause 8.1 shall apply to the fullest extent permissible at law, but the Licensor does not exclude liability for:
1. death or personal injury caused by the negligence of the Licensor, its officers, employees, contractors or agents;
2. fraud or fraudulent misrepresentation;
3. any other liability, which may not be excluded by law.

INTELLECTUAL PROPERTY RIGHTS
1. The Licensee acknowledges that all Intellectual Property Rights in the Licensed Materials belong and shall belong to the Licensor or are appropriately licensed to the Licensor (including without limitation those licenses set out in Schedule 2), and the Licensee shall have no rights in or to the Licensed Materials other than the right to Use them in accordance with the terms of this Agreement.
2. The Licensor undertakes at its own expense to defend the Licensee or, at its option, settle any claim or action brought against the Licensee alleging that the possession, use, development, modification or maintenance of the Licensed Materials (or any part thereof) in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party (a “Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Licensee as a result of or in connection with any such Claim. For the avoidance of doubt, this clause 9.2 shall not apply where the Claim in question is attributable to possession, use, development, modification or maintenance of the Licensed Materials (or any part thereof) by the Licensee other than in accordance with the terms of this Agreement, use of the Software in combination with any hardware or software not supplied or specified by the Licensor if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
3. If any third party makes a Claim, or notifies an intention to make a Claim against the Licensee, the Licensor’s obligations under clause 9.2 are conditional on the Licensee:
  1. as soon as reasonably practicable, giving written notice of the Claim to the Licensor, specifying the nature of the Claim in reasonable detail;
  2. not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Licensor (such consent not to be unreasonably conditioned, withheld or delayed);
  3. granting the Licensor sole conduct of the Claim save that the Licensor shall not enter into any final settlement that may have a material adverse effect on the Licensee without prior written consent of Licensee, which such consent shall not be reasonably withheld or delayed; and
  4. providing reasonable assistance upon reasonable request of Licensor.
4. If any Claim is made, or in the Licensor’s reasonable opinion is likely to be made, against the Licensee, the Licensor may at its sole option and expense:
  1. procure for the Licensee the right to continue using the Licensed Materials (or any part thereof) in accordance with the terms of this Agreement;
  2. modify the Licensed Materials so that they cease to be infringing;
  3. replace the Licensed Materials with non-infringing materials; or
  4. terminate this Agreement immediately by notice in writing to the Licensee and refund any of the Fees paid by the Licensee as at the date of termination (less a reasonable sum in respect of the Licensee’s use of the Licensed Materials to the date of termination) on return of the Licensed Materials and all copies thereof.
5. This clause 9 constitutes the Licensee’s exclusive remedy and the Licensor’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8.1.
DURATION AND TERMINATION
1. This Agreement shall commence on the Commencement Date and shall continue until terminated in accordance with this clause or as otherwise provided in this Agreement.
2. Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies:
  1. the Licensor may at any time terminate this Agreement with immediate effect by giving written notice to the Licensee if the Licensee fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
  2. either party may at any time terminate this Agreement with immediate effect by giving written notice to the other party if:
    1. the other party commits any material breach of this Agreement which breach is not remediable or, if remediable, is not remedied within 30 days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
    2. the other party becomes insolvent, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up, has a receiver or administrator appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.
3. Termination by either party in accordance with the rights contained in this clause 10 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
4. On termination for any reason:
  1. all rights granted to the Licensee under this Agreement shall cease;
  2. the Licensee shall cease all activities authorised by this Agreement;
  3. the Licensee shall immediately pay to the Licensor any sums due to the Licensor under this Agreement; and
  4. the Licensee shall immediately destroy or return to the Licensor (at the Licensor’s option) all copies of the Licensed Materials then in its possession, custody or control and, in the case of destruction, certify to the Licensor that it has done so.
5. Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
Data Protection

Both parties will comply with all applicable requirements of the Data Protection Legislation and, where the Licensor acts as a processor of Customer Personal Data, the provisions set out in Schedule 3 in relation to the processing of personal data. This clause 10 is in addition to, and does not relieve, remove, or replace, a party’s obligations or rights under the Data Protection Legislation.]

WAIVER

The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.

REMEDIES

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

ENTIRE AGREEMENT

This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:

in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and
its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement,

provided that nothing in this clause 13 shall operate to limit or exclude either party’s liability for fraud.

VARIATION

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their duly authorised representatives).

SEVERANCE

If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.

THIRD-PARTY RIGHTS

A person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in this Agreement, nothing in this Agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same.

FORCE MAJEURE

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed provided that:

if the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Agreement by giving 14 days’ written notice to the other party;
this clause shall not have the effect of discharging or postponing the affected party’s payment obligations hereunder.

NOTICES
1. Unless otherwise expressly stated in this Agreement, all notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed duly served if delivered by hand or sent by e-mail, or pre-paid registered post to each party’s designated registered office address of either party (or such other address as is stated on the Front Sheet or as either party may notify to the other for this purpose from time to time).
2. Any notice shall be deemed to have been duly served:
  1. if delivered by hand, on delivery;
  2. if sent by e-mail, on transmission;
  3. if sent by pre-paid registered post, two business days after posting; or
  4. if sent by registered airmail, five business days after posting.
3. For the purpose of clause 19.2, “business day” means any day which is not a Saturday, a Sunday or a public holiday in the place at or to which the notice is left or sent, and the phrase “normal business hours” refers to normal business hours in that place.
4. In proving the service of any notice it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post.
DISPUTES
1. Subject to clause 20.5, if a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) then, except as expressly provided in this Agreement, the parties will attempt to settle such Dispute by negotiation.
2. Where any Dispute cannot be settled by negotiation within 21 days after either party has made a written offer to the other party to negotiate a settlement to such Dispute, the parties shall, before resorting to court proceedings, attempt to resolve the Dispute by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
3. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party shall serve notice in writing (the “ADR Notice”) to the other party requesting a mediation (a copy of the ADR Notice shall also be sent to CEDR Solve). The mediation will start not later than 14 days after the date of the ADR Notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator.
4. If the parties have not settled any Dispute by mediation within 42 days from the initiation of the mediation, the Dispute shall be referred to and finally be resolved by the courts of England and Wales, which shall have exclusive jurisdiction.
5. For the avoidance of any doubt, this clause 20 shall not operate to prevent either party from seeking injunctive relief from the courts of England and Wales, which shall have exclusive jurisdiction in respect of any Dispute.
GOVERNING LAW

The validity, construction and performance of this Agreement shall be governed by the laws of the state of Texas.