(1) Pelucid Ltd (t/a Growth Intelligence) incorporated and registered in England and Wales with company number 7504062 whose registered office is at Level 39, 1 Canada Square London E14 5AA (known hereafter as the Supplier); and
(2) The Customer
(A)The Supplier is the entire legal and beneficial owner and licensor of certain software products listed in The Specification document and is willing to license the Customer to use these products.
1.1 The definitions and rules of interpretation in this clause apply in this Licence.
|Acceptance Date:||the date on which the Customer is deemed to have accepted the Software under clause 2.4.|
|Fee:||the licence fee payable by the Customer to the Supplier under clause 4.|
|Intellectual Property Rights:||all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.|
|New Version:||any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.|
|Site:||the premises from which the Customer carries out its business as stated above or as notified to the Supplier in writing from time to time.|
|Software:||the computer programs listed in the Specification Document and any Modification which is acquired by the Customer during the subsistence of this Licence.|
|Specification:||the document detailing the specification of the Software which is attached to this document.|
1.2 Holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.3 The headings in this Licence do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Licence.
1.4 Unless the context otherwise requires:
1.4.1 references to the Supplier and the Customer include their permitted successors and assigns;
1.4.2 references to statutory provisions include those statutory provisions as amended or re-enacted;
1.4.3 references to one gender includes a reference to the other genders; and
1.4.4 references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them.
1.5 In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in the schedules or appendices, the provision in the body of this Licence shall take precedence.
1.6 Words in the singular include the plural and those in the plural include the singular.
1.7 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns.
- Delivery and acceptance
2.1 The Supplier shall provide the Customer with the link to the Software (delivery). Within seven days of delivery, the Customer shall provide feedback to the Supplier suitable to test whether the Software operates in accordance with the Specification together with the results it reasonably expects to be achieved using the Software.
2.2 If the initial testing fails to comply with the Specification: i.e. deviates substantially from the highly detailed Specification attached, the Supplier shall, within seven days of the feedback and at its cost, correct the errors so disclosed and repeat the testing in the presence of the Customer or its Authorised Agent.
2.3 If the subsequent testing fails in a similar manner, the Customer may discontinue this Licence by written notice, or require the Supplier to repeat the actions described in clause 2.2 as often as the Customer wishes (subject to the limitation specified below). If the licence is so discontinued, the Supplier shall, within seven days of receipt of that notice, refund all monies paid by the Customer under this Licence, and on receipt of that refund this Licence shall terminate. If subsequent testing continues to fail, the Customer shall continue to have the same rights as described above until failure. Testing, or (if earlier) the date on which the Supplier reasonably determines that further testing will not be successful within a reasonable period, whereupon the Customer shall discontinue this Licence.
2.4 The Customer shall be deemed to have accepted the Software if:
2.4.1 the testing is certified by the Supplier to be successful; or,
2.4.2 the Customer commences operational use of the Software.
3.1 In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence for a term of 12 months from and including the date of the delivery:
3.1.1 to use the Software; and
3.1.2 to use the data produced by the software
3.2 In relation to scope of Software use:
3.2.1 for the purposes of clause 3.1.1, use of the Software shall be restricted to use of the Software in the manner specified in the Specification Document for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
3.2.2 For the purposes of clause 3.1.1, “use of the Software” means loading the Software in a web browser (mobile use is allowed) or downloading data and using it for the benefit of the Customer from any location whatever.
3.2.3 the Customer may not use the Software other than as specified in clause 3.1 and clause 3.2.1 without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
3.2.4 except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt the Software in whole or in part except:
(a)to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
3.3 In relation to scope of Data use:
3.3.1 The Customer is free to use any derivation of the data produced by the software for any purposes whatsoever, as long as the Supplier is credited. The Customer may not release raw data to any third party; this means data about specific companies produced by the software.
3.3.2 The Supplier may make available at its discretion any data, except where that data is, or has derived from data which the Customer has supplied the Supplier. This means that any data provided by the Customer to the supplier is treated in the strictest confidence and will not be disclosed to any third party. Data that does not derive from the Customer may be disclosed.
3.4 The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 3.2.4 (a) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.5 The Customer shall not:
3.5.1 sub-license, assign or novate the benefit or burden of this Licence in whole or in part;
3.5.2 allow the Software to become the subject of any charge, lien or encumbrance; and
3.5.3 deal in any other manner with any or all of its rights and obligations under this agreement,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
3.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
3.7 The Customer shall:
3.7.1 ensure that the number of persons using the Licensed Software does not exceed 1 at any one time;
3.7.2 notify the Supplier as soon as it becomes aware of any unauthorized use of the Licensed Software by any person;
3.7.3 pay, for broadening the scope of the licences granted under this Licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 4.4, from such date to the date of payment.
4.1 The Customer shall pay to the Supplier licence fees payable on signature of the contract.
4.2 All sums payable under this Licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
4.3 No exclusivity is declared or implied by this contract. The Supplier is free to resell the software as it sees fit. All intellectual property regarding the software remains with the Supplier.
4.4 If the Customer fails to pay any amount payable by it under this Licence the Supplier may charge the Customer interest on the overdue amount (payable by the Customer immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 10% per annum above the base rate for the time being of Santander UK. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.
4.5 Three months before the end of this licence the Customer will have the option to renew this licence for a further 12 months after the end of the licence with the same terms and conditions. The costs of a further year may be subject to review by the Supplier.
- Confidentiality and publicity
5.1 Each party shall, during the term of this Licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
5.2 The terms of this Licence are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
5.3 Each party undertakes:
5.3.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
5.3.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
5.4 The Supplier will not publically release research attributed directly to the Customer. E.g. the Supplier will not release a press release declaring that companies within the Customer’s portfolio are growing less quickly than companies outside their portfolio.
- Supplier’s warranties
6.1 The Supplier warrants that the Software will conform in all material respects to the Specification for the duration of the Licence. If, within this period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall repair the Software provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault within one or two weeks.
6.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free, but does estimate 99% uptime.
6.3 Any Open-Source Software provided by the Supplier may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in clause 6.4.
6.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
- Limits of liability
7.1 Except as expressly stated in clause 7.2:
7.1.1 the Supplier shall not in any circumstances have any liability 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:
(a) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(b) loss of profits;
(c) loss of anticipated savings;
(d) loss of business opportunity;
(e) loss of goodwill;
(f) loss or corruption of data,
provided that this clause 7.1.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 7.1.2 or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 7.1.1;
7.1.2 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
7.1.3 the Customer agrees that, in entering into this Licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Licence or (if it did rely on any representations, whether written or oral, not expressly set out in this Licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this Licence.
7.2 The exclusions in clause 6.4 and clause 7.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
7.2.1 death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
7.2.2 fraud or fraudulent misrepresentation;
7.2.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
7.2.4 any other liability which may not be excluded by law.
7.3 All dates supplied by the Supplier for the delivery of the Software or the provision of Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
7.4 All references to “the Supplier” in this clause 7 shall, for the purposes of this clause and clause 16 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 16.
7.5 The Supplier warrants and represents that it has full authority to license or sub-license the Third-Party Software to the Customer on the terms of this Licence.
7.6 The Supplier may treat the Customer’s breach of any Third-Party Licence as a breach of this Licence.
- Intellectual property rights
8.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Modifications belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence.
8.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of this Licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 8.2 shall not apply where the Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
8.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 8.2 are conditional on the Customer:
8.3.1 as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
8.3.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
8.3.3 giving the Supplier 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 the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
8.3.4 subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
8.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
8.4.1 procure for the Customer the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of this Licence;
8.4.2 modify the Software so that it ceases to be infringing;
8.4.3 replace the Software with non-infringing software; or
8.4.4 terminate this Licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 6.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Licence been references to the date on which such modification or replacement was made.
8.5 Notwithstanding any other provision in this agreement, clause 8.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification or maintenance of any Open-Source Software incorporated into the Software or through the breach of any Third-Party Licence relating to any Open-Source Software so incorporated.
8.6 This clause 8 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 7.1.
- Duration and termination
9.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement with immediate effect by giving written notice to the other party if:
9.1.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
9.1.2 the other party commits a breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
9.1.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
9.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
9.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
9.1.8 a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
9.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9.1.10 the other party (being an individual) is the subject of a bankruptcy petition or order;
9.1.11 a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.1.12 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.4 to clause 9.1.10 (inclusive); or
9.1.13 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
9.2Termination by either party in accordance with the rights contained in this clause 9 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
9.3On termination for any reason:
9.3.1 all rights granted to the Customer under this Licence shall cease;
9.3.2 the Customer shall cease all activities authorised by this Licence;
9.3.3 the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Licence; and
9.4 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement including clause 1, clause 5, clause 6 (except clause 6.1), clause 7, clause 9, and all Schedules shall remain in full force and effect.
9.5 If the Supplier is acquired the Customer will have the right to cancel this contract forthwith with no further requirements on either side or to continue with the contract under the terms set out.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- Entire agreement
12.1 This Licence, the schedules and the documents annexed as appendices to this Licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
12.2 Each party acknowledges that, in entering into this Licence and the documents annexed to it, 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 this Licence or those documents.
12.3 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 as expressly provided in this Licence.
12.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
14.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement.
- Third-party rights
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
- No partnership or agency
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
- Force majeure
Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances provided that if the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the other party.
19.1 Any notice or other communication required to be given under this agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice or communication or as otherwise specified by the relevant party by notice in writing to each other party.
19.2 Any notice shall be deemed to have been duly received:
19.2.1 if delivered personally, when left at the address and for the contact referred to in this clause;
19.2.2 if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
19.2.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
19.3 A notice or other communication required to be given under this agreement shall not be validly given if sent by e-mail.
19.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- Governing law and jurisdiction
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).