These Master Licence Terms apply to all Licensed Software and Services which AnyData provides.
Client agrees to these Master Licence Terms by (i) signing an Order Form that references these Master Licence Terms, (ii) clicking a box on a website indicating acceptance, (iii) downloading, installing or accessing the Licensed Software or Services developed or provided by AnyData.
1 Definitions and interpretation
Definitions
1.1 In this Agreement:
- “Agreement” means these Master Licence Terms, the Order Form and the documents referred to on the Order Form, each as varied from time to time in accordance with their terms.
- “AnyData” means AnyData Solutions Limited, a company incorporated in England with company number 08514790 having its principal place of business at 2nd floor, 6 Arlington Street, London SW1A 1RE.
- “Applicable Law” means all applicable laws, regulations, regulatory requirements and codes of practice of any relevant jurisdiction, as amended and in force from time to time.
- “Business Day” means any day which is not a Saturday, Sunday or public or bank holiday in England.
- “Charges” means the charges to be paid by Client for the Licensed Software and Services calculated in accordance with the Order Form and Clause 5(Charges).
- “Client” means the organisation referred to as such on the Order Form.
- “Commencement Date” means the date of the Agreement.
- “Competent Authority” means any judicial or regulatory authority having jurisdiction over this Agreement or any of the parties.
- “Force Majeure Event” has the meaning set out in Clause 14(Force majeure).
- “Group” means a party, its parent undertaking and the subsidiary undertakings of its parent undertaking and its associated companies.
- “Intellectual Property Rights” means all vested and future rights of copyright and related rights, design rights, database rights, patents, rights to inventions, trade marks and get-up (and goodwill attaching to those trade marks and that get up), domain names, applications for and the right to apply for any of the above, moral rights, goodwill (and the right to sue for passing off and unfair competition), rights in know-how, rights in confidential information, rights in computer software, and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, whether now known or in future subsisting in any part of the world.
- “Licensed Software” means the software products set out as such on the Order Form, as may be updated by AnyData from time to time and including any documentation that accompanies the software.
- “Order Form” means (a) the order form to which these Master Licence Terms are attached or (b) the online registration form from where these Master Licence Terms are linked.
- “Services” means the services set out on the Order Form.
- “Software Feature List” means a document describing the features available in the Licensed Software.
- “Term” means the period during which the Agreement is in force.
- “Termination” means the termination or expiry of the Agreement, howsoever occurring.
- “User” means an individual authorized to use the Licenced Software in accordance with this Agreement.
- “VAT” means value added tax or any locally applicable equivalent sales tax.
Interpretation
- In the Agreement:
(a) a statute or statutory provision includes a reference to:
(i) any statutory amendment, consolidation or re-enactment of it to the extent in force from time to time;
(ii) all orders, regulations, instruments or other subordinate legislation (as defined in section 21(1) of the Interpretation Act 1978) made under it to the extent in force from time to time; and
(iii) any statute or statutory provision of which it is an amendment, consolidation or re-enactment;
(b) a “person” includes a legal or natural person, partnership, association, trust, company, corporation, joint venture, government, state or agency of the state or other body;
(c) reference to a Clause is to a clause of the Agreement and any reference to the Agreement includes its attachments;
(d) the terms “holding company”, “subsidiary”, “parent undertaking”, “subsidiary undertaking” and “wholly-owned subsidiary” shall be interpreted in accordance with the Companies Act 2006, and the term “associated company” shall be interpreted in accordance with section 449 of the Corporation Tax Act 2010; and
(e) any agreement (including the Agreement) or other document or the provisions of them is a reference to that agreement, document or provision as amended, novated, supplemented, extended, restated or replaced from time to time.
1.3 The headings in the Agreement are for ease of reference only and are to be ignored when interpreting the Agreement.
1.4 In the Agreement the interpretation of general words shall not be restricted by words indicating a particular class or particular examples.
The Agreement shall commence on the Commencement Date and shall (except as expressly provided otherwise in the Agreement) continue until terminated or until the licence of the Licensed Software has expired or terminated for any reason.
3.1 Subject to the terms of this Agreement including payment of all applicable charges, AnyData grants to Client a non-exclusive, non-transferable license to install and use the Licensed Software from the start date set out on the Order Form and for the initial term set out on the Order Form. The licence term shall automatically extend by successive renewal terms (as set out on the Order form) unless either party gives the other party 90 days written notice that it does not wish to extend the licence term.
3.2 Unless otherwise agreed in the Order Form, the Licensed Software may only be used for the internal business purposes of Client and its Group. Internal business purposes includes using the Licensed Software as part of Client’s business services provided to its customers but shall not include the commercial sale or exploitation of the Licensed Software or any part of them.
3.3 Client shall not itself or permit a third party to:
(a) access or use (directly or indirectly) the Licensed Software in a way that circumvents a contractual usage limit (such as numbers of Users);
(b) copy the Licensed Software or any part, feature, function or user interface thereof; or
(c) access the Licensed Software in order to design or build a competing product or service (whether for internal or customer-facing use).
3.4 The Licensed Software may not be used for the purposes of benchmarking the Licensed Software against other competing products and services, or for preparing assessments of the functionality or performance of the Licensed Software.
3.5 The Licensed Software may not be accessed by any person who is a competitor of AnyData or is acting on behalf of any such competitor.
3.6 Client is licensed to use the Licensed Software in machine-readable object code form only. The Licensed Software can be installed on either (i) Client’s own equipment or (ii) the equipment of a service provider with whom Client has a written agreement that enables Client to comply fully with this Agreement.
3.7 Client shall take all measures in accordance with good IT industry practice to prevent unauthorised use or disclosure of the Licensed Software. For the purposes of this clause, “good IT industry practice” means (i) using standards, practices, methods and procedures and (ii) exercising that degree of skill and care, diligence, prudence and foresight, which would in each case reasonably and ordinarily be expected from a skilled and experienced person in the IT industry.
Backups
3.8 Client may make a reasonable number of backups of the Licensed Software in accordance with good IT industry practice.
Restrictions
3.9 Except as expressly permitted by this Agreement or authorized in writing by AnyData, Client shall not, nor permit others to:
(a) use, copy, modify, create derivative works from or distribute the Licensed Software, or any copy, adaptation, transcription, or merged portion of them, except to the extent that the foregoing acts are permitted by law;
(b) decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Licensed Software or any part of them, except to the extent that the foregoing acts are permitted by law;
(c) transfer, loan, lease, assign, rent, or otherwise sublicense the Licensed Software;
(d) remove any copyright, proprietary or similar notices from the Licensed Software (or any copies of them); or
(e) operate the Licensed Software or any part of them for the benefit of or on behalf of any third party, including by way of application service provider services, timesharing arrangements, outsourcing services or bureau services.
3.10 Where Client is permitted by law to decompile the Licensed Software (“decompile” having the meaning defined in section 50B(1) of the Copyright, Designs and Patents Act 1988), Client shall request the information necessary to create an independent program which can be operated with the Licensed Software. AnyData shall respond to any such request within a reasonable time and shall indicate what information it is prepared to make available and on what terms (including as to costs).
Delivery of software
3.11 AnyData shall deliver the Licensed Software (including any related documentation) to Client by making them available for download from AnyData’s website or by any alternative technical method agreed by the parties.
3.12 The Licensed Software shall provide the functionality set out in the relevant Software Feature List. AnyData may change a Software Feature List or the way in which certain features work but no change will materially reduce the functionality of the Licensed Software.
3.13 The Software Feature List may set out the minimum technical requirements for use of the Licensed Software. Client must ensure that it meets such requirements; the Licensed Software may not operate correctly or at all if the requirements are not met.
3.14 The Software Feature List is either attached to the Order Form or, if not attached, is available on AnyData’s website.
Users
3.15 Use of the Licensed Software is limited to the types and numbers of Users set out on the Order Form.
3.16 Client must assign a username and password to each User that Client authorises to use the Licensed Software. Users must be employees of Client or its Group. Provided that Client obtains AnyData’s prior written consent, Users may be consultants, contractors, agents and other third parties with which Client transacts business. Client is responsible for all use of the Licensed Software by Users; any act or omission by a User shall be treated as an act or omission of Client.
3.17 Each User username and password is for a specific individual only and cannot be shared or used by more than one individual (whether directly or indirectly). Usernames may be reassigned to new individuals replacing former Users who no longer require use of the Licensed Software.
3.18 Client may add additional Users during the term at the same pricing as the original User pricing, prorated from the beginning of the month in which they are added for the portion of the term for the Licensed Software remaining at the time the Users are added; any term for any additional Users will terminate on the same date as the existing Users. The number of Users may not be decreased until the next renewal date.
Trial Use
3.19 If Client is using or accessing the Licensed Software using a free trial, then notwithstanding anything else in the Agreement, such use or access is provided by AnyData on as “as is” basis without any liability or obligation on AnyData’s part and without any warranty as to functionality or performance.
Audit
3.20 At the request of AnyData, Client shall within 7 days of receiving written notice to do so certify in writing to AnyData that its use of the Licensed Software is in accordance with the terms of this Agreement.
3.21 AnyData may on reasonable notice inspect the computers on which the Licensed Software is installed or which AnyData reasonably believes they might be installed either in person or by means of remote access. AnyData may inspect the type and amount of usage of the Licensed Software. Such inspection shall be solely for the purpose of verifying that Client’s use of the Licensed Software and the calculation of the Charges is in accordance with this Agreement.
4.1 AnyData shall provide the Services to Client from the date and for the duration set out on the Order Form.
4.2 The Services shall be provided with reasonable care and skill and in accordance with any timescales or service level set out in the Order Form.
5.1 The Charges are set out on the Order Form.
5.2 In addition to the Charges, Client shall reimburse to AnyData all pre-agreed travel and accommodation expenses incurred by AnyData in connection with the provision of the Licensed Software or Services. AnyData may add such expenses to its invoice.
6.1 The Charges do not include VAT which Client shall pay in addition to the Charges at the rate prevailing on the date that the relevant licences or services were supplied.
6.2 The Charges do not include any additional taxes, duties, charges and levies which may become payable. Client shall pay such additional taxes, duties, charges and levies as and when due.
7.1 AnyData shall invoice Client the Charges in advance annually (or other frequency set out on the Order Form). The Charges are not refundable in any event.
7.2 If Client is sent an invoice for the Charges, Client shall pay the Charges without set-off or deductions within 30 days of the date of the invoice.
7.3 If Client fails to pay in full on the due date any sum payable by it under or in connection with the Agreement:
(a) AnyData may suspend provision of the Services or the licence of the Licensed Software until payment in full is received; and
(b) interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 4% per annum above the base rate of Barclays Bank PLC from time to time.
7.4 All sums payable to AnyData under the Agreement shall become immediately payable on Termination.
7.5 If the Order Form provides for payment by credit card (or other electronic payment service) then Client authorizes AnyData to charge such credit card (or other electronic payment service) for all Charges listed in the Order Form for the initial term and any renewal term(s) until Client terminates the Agreement in accordance with these Master Licence Terms.
8.1 Each party represents and warrants that:
(a) it has the power and authority to enter into and perform the Agreement, which constitutes valid and binding obligations on it, in accordance with its terms; and
(b) in performing its obligations under the Agreement it shall comply with all Applicable Law.
8.2 Other than those terms, conditions, warranties and representations which are set out in the Agreement, all other terms, conditions, warranties and representations, whether express or implied, are excluded to the maximum extent permitted by Applicable Law, and in particular AnyData does not warrant that:
(a) the operation of the Licensed Software will be uninterrupted or error-free;
(b) the Licensed Software or Services will meet Client’s particular requirements, whether or not those requirements have been made known to AnyData; or
(c) the Licensed Software or Services are of satisfactory quality or fit for any particular purpose.
9 Intellectual Property Rights
General
9.1 The parties acknowledge that there shall be no change as a result of the Agreement in the ownership of Intellectual Property Rights in any material or items existing as at the Commencement Date, nor does the Agreement assign any Intellectual Property Rights which are created or developed by or on behalf of either party outside the Agreement or where such assignment is not expressly provided for in the Agreement.
9.2 The Intellectual Property Rights in any work product created by AnyData in providing the Services shall belong to AnyData but AnyData shall grant Client a licence to use such work product during the Term for the purposes of receiving the Services and using the Licensed Software.
9.3 Client grants to AnyData a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Licensed Software and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client relating to the operation of the Licensed Software or Services.
9.4 Other than those rights expressly granted to Client by this Agreement, AnyData reserves all rights, title and interest in the Licensed Software and Services.
9.5 AnyData shall procure the defence or, at its option, the settlement of any claim brought against Client, and pay any damages and costs finally awarded by a Competent Authority, arising from any claim that the use of the Licensed Software or the work product from any Services (“Infringing Materials”) in accordance with this Agreement infringes the Intellectual Property Rights of any third party (an “IPR Claim”) provided that:
(a) Client promptly notifies AnyData in writing of any IPR Claim brought or threatened;
(b) Client gives AnyData sole authority to procure the defence or settlement of the IPR Claim; and
(c) Client makes no admissions in respect of the IPR Claim.
9.6 Client shall provide AnyData with all assistance reasonably required by AnyData in connection with any IPR Claim.
9.7 If Client’s use of the Infringing Materials in accordance with this Agreement is either (i) held by a Competent Authority to be infringing or (ii) in AnyData’s opinion reasonably likely to be infringing, AnyData shall at its option and expense:
(a) procure for Client the right to continue to use the Infringing Materials in accordance with this Agreement;
(b) modify the Infringing Materials so that they are not infringing (but without materially detracting from their functionality of performance), in which case Client shall cease using the Infringing Materials as soon as AnyData makes such modification available; or
(c) if in AnyData’s reasonable opinion neither of the above options is commercially viable, require Client to cease use of the Infringing Materials, in which case AnyData shall refund to Client a pro rata portion of any pre-paid Charges relating to the Infringing Materials.
9.8 AnyData’s obligations under this clause shall not apply to the extent that an IPR Claim arises from:
(a) any modification of the Infringing Materials by anyone other than the AnyData or its authorised representatives;
(b) the use of the Infringing Materials otherwise than in accordance with this Agreement; or
(c) the use of the Infringing Materials in combination with any software, hardware or data that has not been supplied or expressly authorised by AnyData where without such combination no IPR Claim would arise.
9.9 This clause states Client’s sole and exclusive remedy and AnyData’s entire liability in respect of any IPR Claim.
10.1 “Confidential Information” means all information of a confidential nature in the disclosing party’s possession or control, whether created before or after the date of the Agreement, whatever its format, and whether or not marked “confidential”, including business plans, information relating to AnyData’s technology, software and Services and the terms of the Agreement, and negotiations relating to it, but not including the existence of the Agreement, or information which is or comes into the public domain through no fault of the other party, was already lawfully in the other party’s possession or comes into the other party’s possession without breach of any third party’s confidentiality obligation to the disclosing party, or is independently developed by or on behalf of the other party.
10.2 Each party shall keep the other party’s Confidential Information confidential, and shall use, copy and disclose that Confidential Information only in connection with the proper performance of the Agreement.
10.3 Nothing in the Agreement shall be construed so as to prevent one party from disclosing the other’s Confidential Information where required to do so by a Competent Authority, provided that, unless prevented by law, the first party promptly notifies the other party in advance and discloses only that part of the other party’s Confidential Information that it is compelled to disclose.
10.4 Each party shall tell the other immediately if it discovers that this Clause 10 (Confidentiality) has been breached and shall, on request, return to the other all of the other party’s Confidential Information which is in a physical form and destroy any other records containing the Confidential Information.
10.5 The obligations in this Clause 10 (Confidentiality) shall continue without limit in time.
11.1 Subject to Clause 11.3, AnyData’s aggregate liability under or in connection with the Agreement, whether arising from contract, negligence or otherwise, in any year shall be limited to the Charges paid by Client to AnyData in that year.
11.2 Subject to Clause 11.3, AnyData shall not be liable to Client for any of the following types of loss or damage even if, in each case, AnyData has been advised of the possibility of such loss or damage:
(a) special, indirect or consequential loss;
(b) loss of profits, revenue, business, contracts, anticipated savings or goodwill; and
(c) loss or damage arising from loss, damage or corruption of any data.
11.3 The exclusions and limitation of liability set out in the Agreement do not apply to:
(a) liability arising from death or injury to persons caused by negligence;
(b) Client’s obligation to pay the Charges;
(c) Client’s breach of AnyData’s Intellectual Property Rights;
(d) either party’s liability under Clause 10 (Confidentiality);
(e) either party’s liability arising as a result of fraud; and
(f) anything else which cannot be excluded or limited by Applicable Law,
to each of which no limit or exclusion applies.
12.1 Either party may terminate the Agreement with immediate effect by giving the other party notice if that other party commits a material breach of the Agreement which:
(a) is not capable of remedy; or
(b) is capable of remedy, but which the party in breach fails to remedy within 30 days of receiving notice from the innocent party specifying the breach and requiring the breach to be remedied.
12.2 Either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
(a) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation;
(b) is the subject of the commencement of any bankruptcy proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days of presentation);
(c) has an administrator, an administrative receiver or trustee appointed over all or any of its assets; or
(d) the equivalent of any of the events described in (a) to (c) above occurs in relation to such other party under the laws of any jurisdiction.
12.3 AnyData may terminate the Agreement in accordance with the provisions of Clause 13 (Force majeure).
12.4 For the purposes of this Clause 12 (Termination), a material breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance. In the Agreement, unless otherwise stated, time shall not be of the essence for the performance of any obligation.
12.5 On expiry or termination of this Agreement for whatever reason Client shall cease all use of the Licensed Software and Services and shall return or, at AnyData’s option, destroy all copies of the Licensed Software (including any documentation) in its possession or control. Client shall on request provide AnyData within 7 days of the request a letter signed by a director of Client confirming Client has complied with this Clause.
Termination shall not affect either of the parties’ accrued rights or liabilities, or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such Termination, including all of the indemnities given by one party to the other party under the Agreement.
14.1 “Force Majeure Event” means an event beyond the reasonable control of a party (the “Affected Party”) which is not attributable to its fault or negligence, including acts of God, expropriation or confiscation of facilities, any form of government intervention, war, hostilities, rebellion, terrorist activity, local or national emergency, strikes and other industrial action, sabotage or riots, floods, fires, explosions or other catastrophes, unavailability of network connectivity and failure of data centre or hosting facilities.
14.2 AnyData shall not be responsible for any failure to carry out any of its duties under the Agreement to the extent that the failure is caused by a Force Majeure Event.
14.3 If the Force Majeure Event prevents AnyData from materially complying with its obligations under the Agreement and it continues for more than 60 days, AnyData may terminate the Agreement with immediate effect by giving Client notice.
15.1 Client may assign or transfer all or any of its rights and obligations under the Agreement to any third party with the prior written consent of AnyData (such consent not to be unreasonably withheld).
15.2 AnyData may assign or transfer all or any of its rights and obligations under the Agreement to any member of the AnyData Group or any purchaser of (i) the rights to the Licensed Software or (ii) any part of AnyData’s business.
16.1 The parties do not intend any third party to have the right to enforce any provision of the Agreement under the Contracts (Rights of Third parties) Act 1999 or otherwise, except where such third party is an assignee of rights under the Agreement and such assignment is in accordance with Clause 15 (Assignment).
16.2 The parties may terminate or vary the Agreement without the consent of any third party.
17.1 The Agreement is the entire agreement between the parties, and replaces all previous agreements and understandings (including any confidentiality or non-disclosure agreements) between them, relating to its subject matter.
17.2 The parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those which are expressly stated in the Agreement.
17.3 Neither party shall have any remedy in respect of any statement not set out in the Agreement upon which it relied in entering into the Agreement, unless the statement was made fraudulently.
18 Relationship of the parties
Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
A failure or delay in exercising any right or remedy under the Agreement shall not constitute a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not prevent the further exercise of that right or remedy. A waiver of a breach of the Agreement shall not constitute a waiver of any other breach.
No variation of the Agreement shall be effective unless it is in writing and signed by or on behalf of each party.
21.1 If there is any conflict or inconsistency between the Order Form, the Master Licence Terms and the other documents incorporated into the Agreement, the provisions of the Order Form prevail, followed by the Master Licence Terms and then any other document incorporated into the Agreement.
22.1 The illegality, invalidity or unenforceability of any provision of the Agreement under any law of any jurisdiction shall not affect or impair the legality, validity or enforceability of the rest of the Agreement, nor the legality, validity or enforceability of that provision under the law of any other jurisdiction.
22.2 If any provision of the Agreement is held to be illegal, invalid or unenforceable under any law of any jurisdiction, the parties shall negotiate in good faith to agree any revision necessary to make the provision legal, valid and enforceable so as best to give effect to the intention of the parties as recorded in the Agreement.
The rights and remedies expressly conferred by the Agreement are cumulative and additional to any other rights or remedies a party may have.
Each party shall pay the costs and expenses incurred by it in connection with the preparation of the Agreement.
The Agreement may be executed in any number of counterparts, which shall each constitute an original and together constitute one agreement. If the Agreement is executed in counterpart, it shall not be effective unless each party has executed at least one counterpart. A counterpart may be signed and delivered electronically (including using exchange of PDF documents by email).
26.1 Communications under the Agreement shall be in writing and delivered by hand, or sent by email or recorded delivery post to the relevant party at its address as set out in the Agreement. Without evidence of earlier receipt, communications are deemed received: if delivered by hand or sent by email, at the time of delivery; if sent by recorded delivery, at 9.00 am on the second Business Day after posting.
26.2 Any communication from Client relating to termination of the Agreement or notifying AnyData of a breach of the Agreement must be sent by recorded delivery (requiring a signature on receipt) to AnyData’s principal place of business set out in the Agreement.
27 Governing law and jurisdiction
27.1 The Agreement and any non-contractual obligations arising in connection with it are governed by and construed in accordance with English law.
27.2 Subject to Clause 27.4, the English courts have exclusive jurisdiction to determine any dispute arising in connection with the Agreement, including disputes relating to any non-contractual obligations.
27.3 Each party irrevocably waives any objection which it may now or later have to proceedings being brought in the English courts (on the grounds that the English courts are not a convenient forum or otherwise).
27.4 Nothing in the Agreement shall prevent a party from applying to the courts of any other country for injunctive or other interim relief.