THIS SOFTWARE EVALUATION LICENCE AND CONFIDENTIALITY AGREEMENT is entered into
BETWEEN:
(1) Compliance Track whose registered office is at 100 Pall Mall,London,SW1Y 5NQ,United Kingdom,Email: sales@compliancetrack.com ('the Licensor') and
(2) Company or individual identified in the online Evaluation form ('the Licensee')
RECITALS
(A) The Licensor has released and is continuing to develop software for automating compliance management.
(B) The Licensor is prepared to disclose to the Licensee certain Licensor software components listed in the Schedule and as added to by the Licensor from time to time in object code and PHP source code as stated in the Schedule and/or the associated technical documentation listed on the following terms and conditions. Together the software components and the documentation shall be referred to as the Materials.
(C) The Materials are supplied to the Licensee for the sole purpose of internally testing and evaluating the Materials as further described in the Schedule ('Evaluation').
NOW IT IS AGREED AS FOLLOWS:
1 Provision of Materials
The Licensor shall deliver the Materials in such form as are currently available to the Licensor. Any details of further Materials provided by the Licensor for the Evaluation shall be recorded in an addition to the Schedule (in the form attached) agreed by both parties.
2 Use and licence of Materials
2.1 Subject to the terms and conditions of this Agreement, the Licensor grants to the Licensee a non-exclusive, non-transferable, limited licence to use the Materials.
2.2 All copies of the Materials provided by the Licensor and any copies made by the Licensee, including all intellectual property rights including all patents, inventions, copyrights, database rights, design rights (whether registered or not), trade marks, trade names, logos, trade secrets, know how and all rights to sue for passing off or unfair competition and all applications for the same and all rights of similar nature existing anywhere in the world ('Intellectual Property Rights') therein, are and shall remain the exclusive property of the Licensor.
2.3 The Licensee shall not distribute, sell, supply, modify, adapt, amend, incorporate, merge, or otherwise alter, the Materials. The Licensee shall not attempt to decompile, reverse engineer or otherwise disassemble any part of the Materials. The Licensee acknowledges that the Materials are to be used solely for reference purposes when carrying out the Evaluation. Nothing in this Agreement shall be construed as a representation that the Licensee will not independently pursue similar opportunities related to the Evaluation of software applications which may provide equivalent functionality to the Materials provided by the Licensor under this Agreement.
2.4 The Licensee acknowledges that the Materials, the related Intellectual Property Rights including its object and source code and related proprietary information embodied in or related to them ('Proprietary Information'), contain valuable trade secrets of the Licensor and are also protected by the copyright and patent laws of various countries. The Licensee agrees that it will keep the Proprietary Information in strict confidence and will not in any way:
2.4.1 disclose or make available the Proprietary Information or any portion thereof to any person or entity, except employees and representatives of the Licensee to whom such disclosure is strictly necessary for Evaluation who are bound by confidentiality obligations.
2.4.2 copy, reproduce or duplicate the Proprietary Information or any portion thereof in any form or medium, except as provided in this Agreement.
The Licensee's confidentiality obligations under this clause 2 shall survive termination of this Agreement for any reason whatsoever.
2.5 The Licensee shall maintain the Proprietary Information and any copies thereof in a secure fashion and will take all reasonable measures consistent with the highest standards of security generally used in the industry for the protection of valuable source code in order to protect the Proprietary Information and any copies thereof from theft, copying, reproduction, or unauthorised distribution, disclosure, dissemination or use. Without limiting the foregoing, the Licensee shall (i) use at least the same level of security for the Proprietary Information that it uses for its own most valuable trade secrets and source code; (ii) use the Proprietary Information only in a secure area and workstation; (iii) limit use of the Proprietary Information to specific individuals to whom such disclosure is strictly necessary to complete the Evaluation and from whom confidentiality undertakings in writing providing no less stringent protection than agreed to in this Agreement have been obtained and who are not (and who will not be) assigned to work on the development of products that compete with the Materials, during the Evaluation and for a period of 2 years commencing on the completion of the Evaluation; and (iv) store all copies of the Proprietary Information in a safe (or equally secure storage place) when it is not being used by the Licensee for the Evaluation.
2.6 The Licensee shall immediately notify the Licensor of any unauthorised use or disclosure of, or of any unauthorised access to, or of any theft or loss of any copies of the Materials or other Proprietary Information which it suspects or which comes to its attention.
2.7 The Licensee shall reproduce and include any copyright or other proprietary rights notices on all copies of the Proprietary Information and partial copies thereof.
2.8 To the extent permitted by the law, the Materials are supplied as is, including any faults. To the maximum extent permitted by the law, the Licensor excludes all warranties conditions or other terms that may be implied into this Agreement whether by law, statute or otherwise. The Licensor gives no condition, warranty or other term whatsoever, either express or implied including, without limitation, any condition, warranty or other term as to the condition of any code, or as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or use of reasonable care and skill. To the extent permitted under applicable law, the Licensor shall not be liable in contract, tort or otherwise for any loss or damage, howsoever arising in connection with the Materials or this Agreement. The Licensor shall not be liable for any indirect, special, or consequential damages, or loss of profit, whether such damages or losses are known, foreseen, foreseeable or unforeseen. Nothing in this Agreement shall limit the Licensor's liability for negligently caused death or personal injury or fraud.
2.9 Except for the rights and licence granted under this Agreement, nothing contained in this Agreement shall be construed to grant to the Licensee any right, title or interest in or to the Materials. The Licensor expressly reserves all right, title and interest in and to the Materials which are not specifically granted to the Licensee under this Agreement.
3 Breach
The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The Licensee agrees that any breach of this Agreement may cause the Licensor substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, the Licensor shall have the right to seek specific performance and other injunctive and equitable relief.
4 Termination
<
p>4.1 The Licensee may terminate the Licence at any time by giving at least 2 days' prior written notice to the Licensor.
4.2 The Licensor may terminate the Licence forthwith if:
4.2.1 Evaluation duration has reached 14 days or a period mutually agreed between the parties to this contract
4.2.2 the Licensee permanently discontinues the use of the Licensed Program Materials or
4.2.3 the licensor considers it is inappropriate to provide Evaluation capability to Licensee for whatever reason.
4.3 Save as expressly provided in clause 4.2 or elsewhere in this Agreement the Licence may not be terminated.
4.4 Forthwith upon the termination of the Licence, the Licensee shall return to the Licensor the Licensed Program Materials and all copies of the whole or any part thereof or, if requested by the Licensor, shall destroy the same (in the case of the Licensed Programs by erasing them from the magnetic media on which they are stored) and certify in writing to the Licensor that they have been destroyed. PROVIDED THAT the Licensee may extract and store any Licensee data upon a separate media for continuity purposes.
4.5 Any termination of the Licence or this Agreement (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 in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
5 Interpretation
5.1 In this Agreement unless the context otherwise requires:
5.1.1 words importing any gender include every gender;
5.1.2 words importing the singular number include the plural number and vice versa;
5.1.3 words importing persons include firms, companies and corporations and vice versa;
5.1.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
5.1.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
5.1.6 the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;
5.1.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
5.1.8 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
5.1.9 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
6 Amendments
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing by a duly authorised officer or representative of each of the parties.
7 Announcements
No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party.
8 Assignment
8.1 This Agreement is personal to the parties and, subject to clause 8.2 below, neither this Agreement nor any rights, licences or obligations under it, may be assigned by either party without the prior written approval of the other party.
8.2 Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such party's equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause will be void and without effect.
9 Entire agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
10 Force majeure
Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party).
11 Notices
11.1 Any notice to be given under this Agreement shall be in writing and shall be sent by electronic mail to the address of the relevant party set out at the head of this Agreement or such other address as that party may from time to time notify to the other party in accordance with this clause 11.1.
11.2 In proving the giving of a notice it shall be sufficient to prove that the notice was left, that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be.
12 Schedules
The provisions of the Schedule shall form part of this Agreement as if set out here..
13 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
14 Successors and assignees
14.1 This agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
14.2 In this Agreement references to a party include references to a person:
14.2.1 who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or
14.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights;
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
15 Waiver
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
16 Counterparts
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
17 Time of the essence
Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
18 Subcontracting
With the prior written consent of the Licensor (such consent not to be unreasonably withheld or delayed) the Licensee may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that the Licensee shall remain liable for such performance and shall indemnify the Licensor against any loss or damage suffered by the Licensor arising from any act or omission of such agents or sub-contractors.
19 Language
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
20 Costs and expenses
Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.
21 Third parties
The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
22 Proper law and jurisdiction
22.1 This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
22.1.1 the Licensor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and
22.1.2 the Licensor shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets ('IPR') (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place.
22.2 Each party recognises that the other party's business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
22.3 With respect to all other disputes which are not IPR related pursuant to clauses 22.1 and 22.2 above and its special rules the following procedures in clauses 22.3 to 22.5 shall apply. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties ('representatives') shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
22.4 If the parties cannot resolve a dispute in accordance with the procedure in clause 22.3 above, then they shall with the assistance of the Centre for Effective Dispute Resolution (CEDR), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution (ADR) procedure acceptable to both parties before pursuing any other remedies available to them. If either party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both parties within [90] days after it has arisen, the matter shall be settled in accordance with the procedure below.
22.5 If the parties cannot resolve the dispute by the procedure set out above, the parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement.
SCHEDULE
Materials licensed
SOFTWARE:
1. Compliance Track Evaluation Standard version of Compliance Track hosted on Compliance Track website. Licensee is provided a user name and password to access.
2. Flash Demo of Compliance Track Available on http://www.compliancetrack.com/
DOCUMENTATION:
Content provided about the software in the website http://www.compliancetrack.com/ or www.compliancetrack.co.uk.
Together with updated versions of all or part of the Materials provided to the Licensee at the Licensor's discretion during the term of the Agreement.
DESCRIPTION OF THE EVALUATION: Licensee can evaluate Compliance Track by using the flash demo of the software or using the hosted trial version of the software along with the content available in the website of Compliance Track.
