Digital Media Annotator Licence & Support – Terms and Conditions
These Terms and Conditions together with the “Digital Media Annotator Licence & Support – Order Form” which references these Terms and Conditions (the “Order Form”) is a legal agreement (the “Licence”) between Ixxus Limited (CRN: 04318632) having its registered office at 25 Camperdown Street, London E1 8DZ (“Ixxus”) and the company or organisation detailed in the Order Form (the “Licensee”) for the use of the Ixxus Digital Media Annotator Software products detailed in the Order Form in object code form (the “Software”) as well as the accompanying electronic documentation which is published on Ixxus’ website from time to time (the “Documentation”).
Ixxus licences use of the Software and Documentation to the Licensee on the basis of the terms and conditions of this Licence only, which shall apply to the exclusion of all other terms and conditions which the Licensee may seek to impose or reference. Ixxus does not sell the Software or Documentation to the Licensee. Ixxus (and its licensors) shall at all times remain the owner of the Software and Documentation.
1. Grant and scope of licence
1.1. In consideration of the Licensee agreeing to abide by the terms of this Licence and agreeing to pay the licence fees detailed in Clause 4, Ixxus hereby grants to the Licensee a non-exclusive, non-transferable licence to use the Software and the Documentation during the term of this Licence on the terms of this Licence.
1.2. The Licensee may:
1.2.1. install the Software on the computer equipment detailed in Order Form (the “Licensed Equipment”) and use the Software for its own internal business purposes only; and
1.2.2. permit no more than the number of concurrent users, for whom the Licensee has purchased and holds a valid licence of the Software, (“Licensed Users”) to access and use the Software for the purpose described in clause 1.2.1above; and
1.2.3. provided the Licensee complies with the provisions in Clause 2, make a maximum of 2 copies of the Software for back-up purposes; and
1.2.4. use any Documentation in support of the use of the Software permitted under this Clause 1.2and make a reasonable number of copies of the Documentation as are necessary for its lawful use.
2.1. Except as expressly set out in this Licence or as permitted by any local law, the Licensee undertakes:
2.1.1. not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
2.1.2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
2.1.3. not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
2.1.4. not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program; (ii) is not disclosed or communicated without Ixxus’ prior written consent to any third party to whom it is not necessary to disclose or communicate it; and (iii) is not used to create any software which is substantially similar to the Software;
2.1.5. to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
2.1.6. to ensure that all Licensed Users are either employees or contractors of the Licensee who are using the software only for the Licensee’s internal business purposes and to supervise and control all use of the Software by Licensed Users and ensure that the Software is used by Licensed Users in accordance with the terms of this Licence;
2.1.7. to include Ixxus’ and its licensors’ copyright notices on all entire and partial copies of the Software in any form;
2.1.8. not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than the Licensed Users, without prior written consent of Ixxus.
3. Third Party Software and Materials
3.1. The Licensee acknowledges and agrees that the Software and Documentation may contain or incorporate software and/ or other materials which are owned and/or supplied by third parties (“Third Party Software/ Materials”).
With respect to any such Third party Software/ Materials the Licensee agrees that, in addition to the terms and conditions contained in the body of this Licence, it will comply with and be subject to any additional provisions affecting the use of such Third Party Software/ Materials as may be notified to the Licensee in writing. Details of provisions affecting the use of Third Party Software/ Materials, are published on Ixxus’s website from time to time athttps://www.ixxus.com/content/dma-terms-conditions.
4. Licence and Support Fees
4.1. The Licensee shall pay an annual licence and support fee to use the Software and for the provisions of Support and Maintenance Services as detailed in the Order Form (the “Licence and Support Fees”). All Licence and Support Fees shall be paid direct to Ixxus or (where applicable) its appointed Reseller.
4.2. Unless otherwise stated in the Order Form or agreed between the parties in writing, the Licence and Support Fees shall be paid on signature of the Order Form and at the beginning of each Renewal Term. For the avoidance of doubt, in the event that the Licensee fails to pay the Licence and Support Fee due at the beginning of any Renewal Term, the Licensee shall cease to have any further right to use the Software or the Support and Maintenance Services.
4.3. All sums payable under this Licence are exclusive of VAT or any other sales taxes, which (if applicable) the Licensee agrees to pay in addition.
4.4. If the Licensee fails to pay any amount payable by it under this Licence Ixxus may charge the Licensee interest on the overdue amount (payable by the Licensee immediately on demand from the due date up to the date of actual payment, after as well as before judgment, at the rate of 3% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. Ixxus may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.
4.5. Ixxus shall be entitled to increase the Licence Fee due under this Licence at the end of the Initial Term of this Licence or any Renewal Term, provided that it gives the Licensee at least thirty (30) days prior written notice.
5. Support and Maintenance Services
5.1. Provided that the Licensee has paid all applicable Licence and Support Fees due under this Agreement by the due date for payment and has complied with the terms and conditions of this Licence, Ixxus agrees to provide the Licensee with support and maintenance services in relation to the Software (“Support and Maintenance Services”) whilst this Licence is in force.
5.2. Support and Maintenance Services shall comprise the following:
5.2.1. the provision of such maintenance releases to the Software as Ixxus may generally make available to its customers from time to time; and
5.2.2. technical support in relation to the Software via Ixxus Support Portal.
5.3. Ixxus shall use reasonable endeavours to ensure that the Support and Maintenance services are provided in accordance with the Ixxus Support and Maintenance terms and conditions published by Ixxus at https://www.ixxus.com/misc/sow-terms-conditions-support/ (“Support SLA“) as that may be updated or modified by Ixxus from time to time.
5.4. The Licensee acknowledges and agrees that Support and Maintenance Services are subject to fair usage limits applicable to the level of Support and Maintenance which the Licensee has purchased. Details of fair usage limits will be set out in the Order Form.
5.5. Ixxus may (in its absolute discretion) agree to provide additional professional services to the Licensee in relation to the Software (“Professional Services”) which may include (without limitation) the provision development, implementation and training services. Unless agreed otherwise between the parties in writing, all such Professional Services shall be provided under the terms of a separate Services Agreement to be concluded between the parties and Ixxus shall charge for any such Professional Services at such price as the parties may agree or (in the absence of such agreement) on a time and materials basis in accordance with Ixxus’ standard rates in force from time to time.
6. Intellectual property rights
6.1. The Licensee acknowledges that all intellectual property rights in the Software and the Documentation throughout the world belongs to Ixxus and its licensors, that rights in the Software are licensed (not sold) to the Licensee, and that the License has no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
6.2. Unless otherwise agreed in writing any intellectual property rights arising from the provision of the Support and Maintenance Services or any other services supplied pursuant to this Agreement shall belong to Ixxus or (where applicable) its licensors.
6.3. The Licensee acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
6.4. The integrity of this Software may be protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software is not misappropriated. The Licensee must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in its possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
7. Limited warranty
7.1. Ixxus warrants that the Software will, when properly used on or in conjunction with the systems for which it was designed, perform substantially in accordance with the functions described in the Documentation for a period of thirty (30) days from the date of installation of the Software (the “Warranty Period”). If, within the Warranty Period, the Licensee notifies Ixxus in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, Ixxus will, at its sole option, either (i) repair or replace the Software, provided that the Licensee makes available all the information that may be necessary to help Ixxus to remedy the defect or fault; or (ii) refund any Licence Fees paid by the Licensee in which event this Licence will terminate.
7.2. Ixxus warrants that it will perform the Support and Maintenance Services and any other services performed pursuant to this Licence, using reasonable skill and care. If, within a reasonable period following the performance of any such services, the Licensee notifies Ixxus in writing of any breach of the warranty contained in this Clause 7.2, Ixxus will, at its sole option, either remedy such breach and/ or re-perform the Services in question, provided that the Licensee makes available all the information that may be necessary to help Ixxus do the same.
7.3. This Clause 7sets out the Licensee’s exclusive remedy and Ixxus’ entire liability for any breach of the warranties contained in Clause 7.1and 7.2.
7.4. The warranties contained in Clause 7.1and 7.2only apply to defects and errors in the Software or service outputs which can be reproduced, and do not apply; (i) if the defect or fault in the Software or services results from the Licensee or any third party having amended the Software or service outputs; (ii) to defects or errors in Software or Services which have been used in violation of this Licence or other than in accordance with the Documentation; (iii) any faults or errors in the Software or Services which are caused by any software or hardware product other than the Software.
8. Limitation of liability
8.1. The Licensee acknowledges that the Software has not been developed to meet the Licensee’s individual requirements, and that it is therefore the Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet the Licensee’s requirements.
8.2. Ixxus only supplies the Software and Documentation for internal use by the Licensee’s business, and the Licensee agrees not to use the Software or Documentation for any re-sale purposes without the prior written agreement of Ixxus.
8.3. Ixxus shall not under any circumstances whatever be liable to the Licensee, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for: (i) loss of profits, sales, business, or revenue; (ii) business interruption; (iii) loss of anticipated savings; (iv) loss or corruption of data or information; (v) loss of business opportunity, goodwill or reputation; or (vi) any indirect or consequential loss or damage.
8.4. Subject to Clause 8.5, Ixxus’ maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Licence and Support Fees actually paid by the Licensee under this Agreement.
8.5. Nothing in this Licence shall limit or exclude Ixxus’ liability for: (i) death or personal injury resulting from our negligence; (ii) fraud or fraudulent misrepresentation; (iii) any other liability that cannot be excluded or limited by applicable law.
8.6. This Licence sets out the full extent of Ixxus’s obligations and liabilities in respect of the supply of the Software and Documentation and Support and Maintenance Services. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Ixxus. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation and Support and Maintenance Services which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
9. Term and Termination
9.1. Unless otherwise agreed in writing between the parties, this Licence shall commence or be deemed to have commenced on the earlier of (i) the date that the Order Form has been signed by both parties; or (ii) the date on which the Software is installed on the Licensee’s computer systems (the “Commencement Date”).
9.2. Following the Commencement Date this Licence shall continue for the initial term stipulated in the Order Form (the “Initial Term”) and shall renew automatically at the end of the Initial Term for further consecutive periods of one (1) year (each a “Renewal Term”) unless and until terminated in accordance with the provisions of this Clause 9or any other provision of this Licence.
9.3. Either party may terminate this Licence for convenience at any time by giving the other not less than thirty (30) days prior written notice terminating this Licence with effect from the end of the Initial Term or any Renewal Term.
9.4. Ixxus may terminate this Licence immediately by written notice to the Licensee:
9.4.1. if the Licensee fails to pay the Licence and Support Fee or any other sum due under this Licence by the due date for payment; or
9.4.2. if the Licensee commits a material or persistent breach of this Licence which it fails to remedy (if remediable) within 14 days after the service of written notice requiring the Licensee to do so; or
9.4.3. if the Licensee becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Licensee (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Licensee’s assets or business, or if the Licensee makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
9.5. Upon termination or expiry for any reason:
9.5.1. all rights granted to the Licensee under this Licence shall cease and the Licensee must cease all activities authorised by this Licence; and
9.5.2. the Licensee must immediately pay to Ixxus any sums due to the Ixxus under this Licence; and
9.5.3. the Licensee must immediately delete or remove the Software from all computer equipment in its possession or under its control and immediately destroy or return to Ixxus (at Ixxus’ option) all copies of the Software then in the Licensee’s possession, custody or control and, if requested at any time, certify to Ixxus that the Licensee has done so.
10.1. Each party shall, whilst this Licence is in force and thereafter, keep confidential, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party, any information of a confidential nature which may become known to such party from the other party and which relates to the other, unless such 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.
10.2. The Licensee acknowledges and agrees that the Software and Documentation shall be treated as confidential and shall only be disclosed by the Licensee to those Licensed Users who have a reasonable need to use the Software and Documentation for the purpose of this Licence. The Licensee shall not (and shall procure that its Licensed Users shall not) (i) use the Software and Documentation other than for the purposes detailed in this Licence, or (ii) disclose the Software and Documentation to any third party without Ixxus’ prior written consent.
10.3. Notwithstanding Clause 10.1above, the Licensee agrees that Ixxus may use the Licensee name and logo in connection with the marketing and promotion of the Software.
11.1. Ixxus may from time to time enter into agreements with resellers (“Resellers”) to promote, market and sell the Software on its behalf. If the Licensee has purchased the Software from a Reseller, Ixxus confirms that Ixxus is responsible for providing the Software and any related Support and Maintenance Services in accordance with the terms of these Terms and Conditions.
11.2. Any other terms agreed between the Licensee and the Reseller will not be binding on Ixxus, unless Ixxus has expressly agreed to those terms in writing. Ixxus will not be responsible for the following: (i) save as expressly provided in Clause 11.1the actions of any Resellers; (ii) any additional obligations the Reseller may have to the Licensee; or (iii) any other products and services which the Reseller may agree to supply to the Licensee other than the Software and related Support and Maintenance Services.
12.1. In the event that the Licensee permits more than the permitted number of Licensed Users to use the Software on any occasion, Ixxus will notify the Licensee and give the Licensee the opportunity to purchase additional licences to support its use of the Software.
12.2. In the event that Licensee fails or declines to purchase additional licences which in the reasonable opinion of Ixxus are required to support the Licensee’s use of the Software, then (without prejudice to any other rights or remedies which may be available to Ixxus) Ixxus reserves the right to charge the Licensee for such additional licences.
13.1. All notices given by the Licensee to Ixxus under this Licence must be sent to Ixxus by email or post using the contact details set out in the Order Form. Ixxus may give notice to the Licensee using any email address or postal address detailed in the Order Form or by contacting the Licensee at its principal place of business. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. 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 and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
14. Force Majeure
14.1. Neither party shall in any circumstances be in breach of this Licence nor liable for delay in performing, or failure to perform, any of its obligations under this Licence if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
15.1. Ixxus may transfer its rights and obligations under this Licence to another organisation, but this will not affect the Licensee’s rights under this Licence. The Licensee may only transfer its rights or obligations under this Licence to another person if Ixxus agrees in writing.
15.2. This Licence and any document expressly referred to in it constitutes the entire agreement between the parties. The Licensee acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Ixxus which is not set out in this Licence or any document expressly referred to in it.
15.3. If Ixxus fails to insist that the Licensee perform any of its obligations under this Licence, or Ixxus does not enforce its rights against the License, or if Ixxus delay in doing so, that will not mean that Ixxus has waived its rights against the Licensee and will not mean that the Licensee does not have to comply with those obligations. If Ixxus does waive a default by the Licensee, Ixxus will only do so in writing, and that will not mean that Ixxus will automatically waive any later default by the Licensee.
15.4. Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
15.5. This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. The parties both agree to the exclusive jurisdiction of the courts of England and Wales.