Process Navigator End User Licence Agreement

VERSION: 13 March 2019

THE COPYRIGHT IN SOFTWARE SUPPLIED UNDER THESE TERMS IS OWNED BY TRIASTER LIMITED ("TRIASTER"). YOU MAY NOT USE THE SOFTWARE WITHOUT THE PERMISSION OF TRIASTER. BY INSTALLING A COPY OF THIS SOFTWARE YOU THE CUSTOMER BEING AN INDIVIDUAL OR A SINGLE LEGAL ENTITY ("CUSTOMER") ENTER INTO A CONTRACT FOR THE LICENSING OF THE SOFTWARE ON THE TERMS BELOW WHICH YOU AS LICENSEE ACCEPT.

 1. Definitions and Interpretations


1.1 These Standard Terms constitute the contract (“Contract”) between Triaster and the Customer for the grant of a licence to use the software.

1.2 In this Contract the following words and expressions shall have the following meanings except where the context otherwise requires:

 

“Contract”

means the contract for the grant of the Licence

“Data Protection Legislation”

means all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).

“Effective Date”

means the date on which the Triaster Software is installed by the Customer;

“Initial Term”

12 months;

“Intellectual Property Rights”

means all inventions, patents, registered designs design rights, copyrights, know-how, rights in software, database rights and trademarks whether registered or not and the goodwill thereon and applications for any of the same and all rights of a similar nature throughout the world;

“Licence Term”

means the term of duration of the software licence(s)

which shall commence on the Start Date and continue

 

 

until termination of the Contract in accordance with these standard terms;

“Personal Data”

means any information relating to an identified or identifiable natural person that is processed by the Provider as a result of, or in connection with, the provision of the services under the Master Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.;

“Standard Terms”

means the standard terms and conditions set out in this document;

“Triaster Software”

means the Triaster computer software program identified as “Process Navigator” when activated in Start-Up mode, including without limitation all Upgraded Versions modifications and customisations thereto authorised by Triaster;

“Upgraded Version”

means any new iteration or maintenance release of the Triaster Software produced by Triaster from time to time.

 

1.3   Except where the context otherwise requires:

 1.3.1   words in the singular shall include the plural and vice versa;

1.3.2    a reference to a person shall include a reference to a firm a body corporate an unincorporated association or to a person's executors administrators successors (including but not limited to persons taking by novation) and assigns;

1.3.3   the headings and use of bold type in this Contract are for convenience only and shall not affect the interpretation or construction of this Contract. Any reference to a Clause is, unless otherwise stated, to a clause in this Contract.

 2. DURATION

2.1   This Contract will commence on the Effective Date and unless terminated in accordance with clause 2.2 or clause 9 will continue for the Initial Term.

2.2 The Customer may terminate this Contract at any time without liability by:

 2.2.1 uninstalling, deleting and permanently erasing all copies of the Triaster Software;

2.2.2 provided Triaster offer the Customer the option to activate the Triaster Software for a new Licence Term, activating the Triaster Software and thereby terminating this Contract and simultaneously accepting the then current version of this End User Licence Agreement as a new Contract;

3. LICENCE

3.1 Triaster hereby grants to the Customer a non-exclusive and non- transferable licence (“Licence”) to use the Triaster Software for the Licence Term subject to these Standard Terms as amended from time to time.

3.2 For the purpose of clause 1, the Customer’s use of the Triaster Software:

3.2.1 is restricted to use of the Triaster Software in object code form for the purpose of processing the Customer’s data for normal business use of the Customer;

3.2.2 does not include allowing the use of the Triaster Software for any person or entity other than the Customer;

3.2.3 may include making up to two back-up copies of the Triaster Software for its lawful use, provided that the Customer keeps an auditable record of the number and location of all such back-up copies;

3.2.4 except as expressly provided in this clause 3 or in law the Customer will have no right, and will not permit or allow any third party to copy, adopt, reverse engineer, modify, decompile, disassemble, adapt or correct the Triaster Software in whole or in part;

3.2.5 does not include any licence of any third party software with which the Triaster Software may operate and the Customer acknowledges that it is required to obtain any licences which it may require to enable it to use such third party software;

3.3 The Licence shall not be deemed to extend to any programs or materials of Triaster other than the Triaster Software unless specifically agreed to in writing by Triaster.

3.4 The Customer hereby acknowledges that it is licensed to use the Triaster Software only in accordance with the express terms of this Contract and not further or otherwise. In particular the Customer may not use any information provided by Triaster to create software or content which is substantially similar to the Triaster Software.

3.5 The Customer will permit Triaster at any time on reasonable notice to inspect and have access to any premises and computer systems or equipment at or on which the Triaster Software is kept, used or held, including the right to inspect records or reports for the purpose of ensuring compliance with the terms of these Standard Terms in general, and the provisions of this clause 4 in particular.

 4. CUSTOMER’S OBLIGATIONS

4.1 The Customer shall fully and effectively indemnify Triaster and hold Triaster harmless against all damages, costs or liabilities and other sums incurred arising out of any use or misuse of the Triaster Software by the Customer.

5. WARRANTIES

5.1.1 THIS SOFTWARE IS PROVIDED BY TRIASTER “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL TRIASTER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

6. LIMITATION OF LIABILITY

6.1 Neither party excludes any liability, howsoever arising for any death or personal injury caused by negligence nor for any liability arising due to fraud or fraudulent misrepresentation


6.2 Subject to clause 6.1 above, Triaster will not in any circumstances be liable for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

6.2.1 special damage even if the Supplier was aware of the circumstances in which such special damage could arise;

6.2.2 loss of profits;

6.2.3 loss of anticipated savings;

6.2.4 loss of business opportunity;

6.2.5 loss of goodwill;

6.2.6 loss or corruption of data.

 6.3 The Triaster Software is provided free of charge therefore Subject to clauses 6.1 and 6.2 Triaster’s total aggregate liability to the Customer in respect of any alleged breach or non- conformity with this Contract, whether in contract, tort (including negligence) or otherwise is zero.

6.4 The Customer shall fully and effectively indemnify Triaster and hold Triaster harmless against all damages, costs, or liabilities and any other sums incurred arising out of a Claim arising out of the Customer’s use of the Triaster Software in breach of clause 7.

7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS

7.1 The Customer acknowledges that all Intellectual Property Rights in the Triaster Software including any maintenance release or Upgraded Version and any Maintenance Releases belong and shall belong to Triaster or its licensors.
7.2 For the avoidance of doubt, Triaster will not be required to indemnify the Customer in respect of any Claim attributable to possession or use of the Triaster Software (or any part thereof) by the customer.

7.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Customer shall:

7.3.1 as soon as reasonably practicable, give written notice of the Claim to Triaster, specifying the nature of the Claim in reasonable detail;

7.3.2 not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Triaster (such consent not to be unreasonably conditioned, withheld or delayed);

7.3.3 give Triaster and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Triaster and its professional advisers to examine them and to take copies for the purpose of assessing the Claim; and

7.3.4 take such reasonable action as Triaster may reasonably request to avoid, dispute, compromise or defend the Claim.

7.4 If any Claim is made, or in Triaster’s reasonable opinion is likely to be made, against the Customer, Triaster may at its sole option and expense:

7.4.1 modify the Triaster Software so that it ceases to be infringing;

7.4.2 replace the Triaster Software with non-infringing versions; or

7.4.3 terminate the Contract immediately by notice in writing to the Customer

7.5 This clause constitutes the Customer's exclusive remedy and Triaster’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 6.

7.6 The images, logos, names and trading marks used to identify Triaster or Triaster’s products and services are Triaster’s proprietary marks whether registered or unregistered and may be used only with Triaster's permission.

7.7 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 7. Each party may disclose the other party's confidential information:

7.7.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 7; and

7.7.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

7.8 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.

8. TERMINATION OF CONTRACT

8.1 Either party may terminate the Contract forthwith on giving notice in writing to the other party if:

8.1.1 the other party commits any material breach of any term of these Standard Terms and (in the case of a breach capable of being remedied) shall have failed within 30 days after the receipt of a request in writing to remedy the breach (such request to contain a warning of the intention to terminate); or

8.1.2 the other party suspends or threatens to suspend payment of its debts, or is otherwise unable to pay debts as they fall due;

8.1.3 the other party commences any negotiations with any or call credits to reschedule any of its debts other than any solvent amalgamation of debts or assets;

8.1.4 any application is made for the appointment of or administrative receiver or declaration of bankruptcy or any equivalent;

8.1.5 the other party suspends or ceases or threatens to suspend or cease carrying on all or a substantial part of its business.

8.2 Any provision within these Standard Terms that expressly or by implication arises to come into or continue in force on or after termination or expiry of the Contract, will continue to have full force and effect.

8.3 On termination of the Contract for any reason:

8.3.1 the licence to use the Triaster Software will terminate;

8.3.2 the Customer will, no later than the end of expiry of the relevant licence, discontinue use of all software provided by Triaster and will permanently erase all copies (including all backups) of the Triaster Software from its systems;

8.4 Any termination of the Licence or this Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

9. DATA PROTECTION

9.1 For the avoidance of doubt, no Personal Data as defined in the Data Protection Legislation is controlled or processed by Triaster as a consequence of this Contract.

10. ASSIGNMENT

10.1 Neither party shall be entitled to assign or otherwise transfer the benefits or obligations of the Contract whether in whole or in part without the prior written consent of the other party.

11. GENERAL

11.1The Parties undertake for the duration of this Contract and 6 months thereafter not to solicit, entice or encourage to leave the employ of the other Party, any person who is employed by the other Party without the prior written consent of the other Party.

11.2 For the avoidance of doubt, the Customer is not entitled to, and Triaster is not obligated to supply, any form of Support, Training or other Help to the Customer.

11.3 Triaster shall not be in breach of the terms of this Contract for any delay in performing, or failure to perform, its obligations under the Contract if that delay or failure was due to any cause or circumstance beyond Triaster’s reasonable control. If such delay or failure persists for more than 90 days, the Customer shall be entitled to terminate the Contract immediately by notice in writing and the provisions of Clause 11.3 shall apply.

11.4 These Standard Terms, and any schedules or documents annexed as appendices to these Standard Terms contain the whole agreement between the parties relating to the subject matter of the Contract and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into the Contract, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in the Contract. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.

11.5 From time to time, Triaster may make commercially reasonable changes to these Standard Terms, and/or the configuration of the Triaster Software. Where Triaster makes any amendment to the Standard Terms, it will communicate such change to the Customer, and where the change has a materially adverse impact on the Customer, and the Customer acting reasonably does not agree to the change, the Customer must notify Triaster that it rejects the change within 30 (thirty) days after receiving notice of the change, and the Contract will continue to be governed by the terms in effect immediately prior to the notification of the change until the end of its then current term, unless terminated earlier in accordance with clause 11.

11.6 Nothing in this Contract shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999. No variation to this Contract and no supplemental or ancillary agreement to this Contract shall create any such rights unless expressly so stated in any such agreement by the parties. This does not affect any right or remedy of a third party which exists or is available apart from that Act.

11.7 All notices which are required to be given hereunder shall be in writing and shall be sent to the registered office of the recipient, or such other address in England as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class pre-paid letter and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting.

11.8 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

11.9 To the extent that any clause or part of a clause is found to be invalid or unenforceable such clause or part of a clause shall be deemed modified to the minimum extent possible to give it legal effect, and if any such modification is not possible that part of portion will be deemed deleted and the remainder of these Standard Terms shall remain in full force and effect.

11.10 The failure to exercise or delay in exercising a right or remedy provided by these Standard Terms or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.

11.11 This Contract shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees the Courts of England and Wales shall have exclusive jurisdiction in relation to any claim dispute or difference concerning this Contract and any matter arising therefrom.

11.12 No variation to these Standard Terms will be binding unless signed in writing by authorised representatives of the parties.

11.13 Triaster implements anti-bribery measures in accordance with the UK Bribery Act and good practice, and does not accept nor condone the solicitation or offering of inappropriate gifts and/or payments. The Customer will notify Triaster of any attempt to offer any inappropriate gift or payment by way of an inducement to enter into this Contract, or to vary its terms, and will cooperate with Triaster in investigating any such inappropriate behaviour.

11.14 The Contract may be executed in counterparts each of which when delivered will constitute a duplicate and all counterparts will together constitute a single agreement.