San Bruno City Council
Regular Meeting of June 24, 2025
Agenda Item 6i.
Attachment 3: End User License Agreement
Attachment 4: Terms and Conditions
©Forensic Analytics 2024 1
End User License Agreement (EULA)
BACKGROUND
This EULA (the “License”) is a legal agreement between
you (“Customer”) or (“You”) and Forensic Analytics, Inc., a Delaware corporation (“Forensic Analytics”).
Forensic Analytics license use of the Services, Software Products and Deliverables to the Customer on the basis of this License. Forensic Analytics do not sell the Services, Software Products or D eliverables to the Customers
through this license . Forensic Analytics, or its licensors, remain the owners of the Services, Software and
Deliverables at all times.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this License.
Activation: use of a License Key and Software
Product in combination to enable a single Use of
the Software Product on a Device. Activated shall
be construed accordingly.
Authorized Users: shall be as specified in the
Order Form.
Charges: charges payable by the Customer to
Forensic Analytics under this License as specified
in the Order Form.
Contract Year: means the 12- month period
commencing on start date of the License Period
and each successive 12-month period thereafter.
Control: a business entity shall be deemed to
“control” another business entity if it owns, directly
or indirectly, in excess of 50% of the outstanding
voting securities or capital stock of such business
entity, or any other comparable equity or
ownership interest with respect to a business entity
other than a corporation.
Data Protection Law: applicable laws and
regulations relating to the processing, privacy, and
use of Personal Data.
Device: an electronic device e.g., PC, laptop ,
server owned or within the exclusive control of the
Customer, and capable of executing the Software
Product in a timely fashion.
Deliverables: the Software Product on installable
media or downloadable form, and a License Key to
activate the Software Product.
Fair Usage Policy: the policy published at
https://www.forensicanalytics.co.uk/fair-use-
policy/, as updated by Forensic Analytics without
notice from time to time.
Industry Standards: the security practices,
data backup regime(s), and/or computer literacy
(as the case may be) which a reasonable person
would expect of a modern, organisation using
forensically copied data to detect and/or
investigate fraud, criminal offences,
malfeasance, misfeasance and/ or nonfeasance.
Intellectual Property Rights: patents, utility
models, rights to inventions, copyright and
related rights, trademarks and service marks,
trade names and domain names, rights in,
goodwill and the right to sue for passing off or
unfair competition, rights in designs, rights in
computer software, database rights, rights to
preserve the confidentiality of information
(including know - how and trade secrets) and
any other intellectual property rights, including
all applications for (and rights to apply for and
be granted), renewals or extensions of, and
rights to claim priority from, such rights and all
similar or equivalent rights or forms of
protection which subsist or will subsist, now or
in the future, in any part of the world.
License Key: a license key issued by Forensic
Analytics to enable Use of a Software Product.
License Period: As outlined in the Order Form
and any agreed upon renewal period between
Forensic Analytics and You in writing.
Malware: malicious software which includes
spyware, trojan horses, rootkits, adware,
phishing attacks, socially engineered or
otherwise.
Malware Protection: software designed to be
installed on Devices to guard against damage
to Devices caused by Malware and updated
regularly by its publisher and deployed to the
Device by the Customer.
Order Form: the order form forming part of this
License.
Personal Data: means personal data or
personally identifiable information, as each is
defined under Data Protection Law.
Services: the services to be supplied by
Forensic Analytics to the Customer set out in
the Order Form.
Software Development Fee: shall be as specified
in the Order Form.
Software Product: shall be as specified in the
Order Form.
Terms of Purchase: means the terms and
conditions which apply to the Order Form.
Use: loading the Software Product into temporary
memory or permanent storage on a Device upon
which forensic analysis is performed.
ATTACHMENT 3
©Forensic Analytics 2024 2
1.2 The headings in this License do not affect its
interpretation. Unless the context otherwise
requires:
(a) references to statutory provisions include
those statutory provisions as amended or re-
enacted.
(b) No terms or conditions of any purchase order
shall form part of or vary this License.
1.3 This License should be read alongside the Terms
of Purchase. In the event of an inconsistency or
conflict between the Order Form , the Terms of
Purchase and this License, they shall be applied in
the following order of precedence:
(a) Order Form;
(b) Terms of Purchase;
(c) this License.
2. LICENCE
2.1 This License applies to each Software Product and
License Key acquired by the Customer. The
Customer may not Use the Software Product other
than when it is Activated.
2.2 In consideration of payment by the Customer of the
Charges for the Software Product, and You
agreeing to abide by the terms of this License ,
Forensic Analytics shall grant You a limited, non -
exclusive, non- transferable, revocable license
(without the right to sublicense) to access and use
the Software Product (in object code form only)
and/or Services on the terms of this License for the
License Period, solely for use in connection with
police investigations..
2.3 Where the Order Form specifies that the Customer
has purchased a single use Software Product the
License Key shall be locked to the Device upon
which the Software Product has been installed and
the Software Product may only be used on that
Device.
2.4 Each Software Product and License Key supplied
to the Customer is issued for the exclusive use by
the Customer and its Authorized Users.
2.5 The Customer shall supervise and control use of
the Software Products and ensure that the
Software Products and any Deliverables are used
by its Authorized Users in accordance with the
terms of this License.
2.6 The Customer acknowledges that License Keys
contain special mechanisms to monitor use of the
Software Product in accordance with the terms of
this License and prevent and/or limit abuse of the
Intellectual Property Rights vesting in the Software
Product. The Customer consents to the use of such
functionality and agrees that:
(a) it will not attempt to block or otherwise
interfere with such functionality; and
(b) it will not disclose any License Key to any
third party unless otherwise agreed in writing
by Forensic Analytics.
2.7 The Customer remains liable to Forensic Analytics
for any misuse or unauthorized use of any Software
Product or License Key by any person under the
control of the Customer whether or not the
Customer complies with the terms of this License.
2.8 Forensic Analytics may supply document and file
templates (“Templates”) for use in conjunction with
the Software Product. The Customer may Use the
Templates and copy and/or modify the Templates
for its own internal business purposes, and may not
sell, rese ll, license, rent, lease, lend, distribute,
make available or transfer for value (or otherwise)
the Templates.
2.9 Forensic Analytics may make available updates to
the Software Products from time to time in Forensic
Analytics sole discretion.
2.10 Forensic Analytics may in its sole discretion
provide an upgrade of a version of the Software
with enhanced functionality upon request by the
Customer and payment of the appropriate Software
Development Fee, each determined in the sole
discretion of Forensic Analytics and upon such
conditions as both parties may agree in writing.
3. RESTRICTIONS OF USE
3.1 Except as expressly provided in th is License or as permitted in any local law which is incapable of
exclusion by agreement between the parties, the
Customer shall not:
(a) copy, adapt, reverse engineer, decompile,
disassemble, modify, adapt or make error
corrections to the Software Product in whole
or in part other than where such copying is
incidental to normal use of the Software
Product or where it is necessary for the
purpose of back-up or operational security;
(b) rent, lease, sub-license, make available to a
third party, loan, translate, or merge the
Software Product or Deliverables;
(c) make alterations to, or modifications of, the
whole or any part of the Software Product,
nor permit the Software Product or any part
of it to be combined with, or become
incorporated in, any other programs; or
(d) exceed the number of Activations specified
in the Order Form.
3.2 Except as expressly provided in this License or as
permitted in any applicable law which is incapable
of exclusion by agreement between the parties, the
Customer shall:
©Forensic Analytics 2024 3
(a) keep all copies of the Software Product
secure and to maintain accurate and up- to-
date records of the number and locations of
all copies of the Software Product; and
(b) use the Software Product and Services in
accordance with all applicable laws and
technology control or export laws and
regulations.
4. ACCEPTABLE USE
4.1 The Customer shall , and shall ensure that its
Authorized Users shall, use the Software Product
in accordance with the Fair Use Policy.
4.2 Subject to clause 4.3, the Customer shall be liable for additional Charges for any use in excess of its
entitlements under this License and shall pay such
Charges to Forensic Analytics immediately upon
request made in writing, failing which Forensic
Analytics may terminate all licenses granted
hereunder without notice.
4.3 The Customer acknowledges that it is solely
responsible for managing, updating, activating,
deactivating and/or changing the number of
Authorized Users of the Software Products For the
purposes of invoicing, Forensic Analytics uses the
information updated by the Customer in respect of
the number of Authorized Users and will invoice the
Customer in accordance with the Customer’s
updates. Forensic Analytics reserves the right to
checks the updates as frequently as it considers
necessary. Forensic Analytics will accordingly not
be liable for any failure by the Customer or its
representatives to update the Software Product
and number of Authorized Users.
5. WARRANTIES
5.1 The Customer warrants and undertakes that:
(a) it has implemented Malware Protection and
an IT security policy that meets or exceeds
Industry Standards in respect of its own IT
infrastructure and Devices which include:
i) regular software patching programme
for the operating system;
ii) Malware scanning and quarantining;
and
iii) provision not to use equipment or
software past the vendor’s end of life
date; and
iv) backup regime to the extent it requires
to preserve its data.
(b) any Authorized Users of any Software
Product are qualified and experienced to
Industry Standards.
(c) it has obtained all permissions and consents
required by it to enter into this License;
(d) it will cooperate at all times with Forensic
Analytics to receive the Services;
(e) its personnel shall possess the requisite
degrees of skill and experience required to
use the Software Product;
(f) it shall provide Forensic Analytics with all
assistance, materials and accurate
information reasonably required by Forensic
Analytics for the purposes of enabling it to
provide the Services hereunder and has
notified Forensic Analytics of any special
requirements of the Customer in writing in
advance of this License;
(g) it shall not allow the Software Product to
become the subject of any charge, lien or
encumbrance; and
(h) shall install any bug fixes, security updates
and general updates promptly and in any
event within 30 days of notification from
Forensic Analytics. For the avoidance of
doubt, t he Customer acknowledges that
failure to do so may prevent the Software
Product from functioning.
6. DATA PROTECTION
6.1 Each party must ensure compliance with all
applicable Data Protection Law at all times during
the term of this License. This clause 6.1 is in
addition to, and does not relieve, remove or
replace, a party’s obligations or rights under Data
Protection Law.
6.2 You represent and warrant during the term of t his
License that any documentation, data, materials or
other information provided to Forensic Analytics in
connection with the provision of the Software
Products and/or Services shall not contain any
Personal Data and that any such documentation,
data, materials or other information that identifies
an individual shall be fully anonymised, aggregated
and/or redacted so as to not constitute Personal
Data prior to its disclosure to Forensic Analytics.
7. LIMITATIONS
7.1 You acknowledge that the Software Products have
not been developed to meet your individual
requirements, including any particular
cybersecurity requirements You might be subject to
under law or otherwise, and that it is therefore your
responsibility to ensure that the facilities and
functions of the Software Products and/or
Deliverables meet your requirements.
7.2 The following provisions set out the entire financial liability of Forensic Analytics (including any liability for the acts or omissions of its employees, agents
and sub-contractors) to the Customer arising under
or in connection with this License, in respect of any
©Forensic Analytics 2024 4
use made by the Customer of the Software Product
and/or the Deliverables or any part of either of
them, and in respect of any misrepresentation,
statement or tortious act or omission (including
negligence) arising under or in connection with this
License.
7.3 EXCEPT AS EXPRESSLY AND SPECIFICALLY
PROVIDED IN THIS LICENSE , THE CUSTOMER
ASSUMES SOLE RESPONSIBILITY FOR
RESULTS OBTAINED FROM THE USE OF THE
SOFTWARE PRODUCT, AND FOR
CONCLUSIONS DRAWN FROM SUCH USE.
FORENSIC ANALYTICS SHALL HAVE NO
LIABILITY FOR ANY DAMAGE CAUSED BY
ERRORS OR OMISSIONS IN ANY SOFTWARE
PRODUCT, INFORMATION, INSTRUCTIONS OR
SCRIPTS PROVIDED TO THE CUSTOMER IN
CONNECTION WITH THE SOFTWARE
PRODUCT AND/ OR SERVICES, OR ANY ACT,
INACTION, OR OMISSION BY THE CUSTOMER;
ALL WARRANTIES, REPRESENTATIONS,
CONDITIONS AND ALL OTHER TERMS OF ANY
KIND WHATSOEVER IMPLIED BY STATUTE OR
COMMON LAW ARE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EXCLUDED
FROM THIS LICENSE; AND THE SOFTWARE
PRODUCT, SERVICES AND ANY
DOCUMENTATION ARE PROVIDED TO THE
CUSTOMER ON AN “AS IS” BASIS.
7.4 Resesrved
7.5 Reserved.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer acknowledges that all Intellectual
Property Rights vesting in the Software Product
and any modifications or updates thereto and the
product of any Services belong to and shall remain
with Forensic Analytics and its third party licensors,
and the Customer shall have no rights in or to the
Software Product other than the right to use it in
accordance with the terms of this License. Any
data submitted by Customer shall remain owned by
Customer.
9. TERMINATION
9.1 Without prejudice to any rights that have accrued
under this License or any of its rights or remedies,
Forensic Analytics may at any time terminate this
License with immediate effect by giving the
Customer written notice if the Customer:
(a) commits a material breach of any term of this
License 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;
(b) repeatedly breaches any of the terms of this
License 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
License;
(c) interferes with the functionality associated
with Software Products;
(d) exceeds the usage entitlements in respect of
any instance of the Software Product set out
in the Fair Usage Policy (i) twice in any 12
month period, or (ii) more than 10% in any
calendar month;
(e) undergoes a change of Control; or
(f) ceases operation without a successor or
seeks protection under a bankruptcy,
receivership, trust deed, creditors’
arrangement, composition, or comparable
proceeding, or if such a proceeding is
instituted against that party and not
dismissed within 60 days.
9.2 Termination shall not affect the accrued rights,
remedies, obligations or liabilities of the parties
existing at termination.
9.3 Customer may terminate the License upon 90 days
written notice without cause and for cause if
Forensic Analytics commits a material breach of
any term of this License 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. If the licence is terminated without cause, no
refund will be due for any fees paid or due by the
Customer.
9.4 On termination for any reason:
(a) all rights and licenses granted to the
Customer under this License shall cease
forthwith;
(b) the Customer shall immediately pay to
Forensic Analytics any undisputed sums due
to Forensic Analytics under this License; and
(c) the Customer shall immediately irretrievably
destroy or return to Forensic Analytics (at the
option of Forensic Analytics) all copies of the
Software Product then in its possession,
custody or control and, in the case of
destruction, certify to Forensic Analytics that
it has done so.
9.5 Any provision of this License which expressly or by implication is intended to come into or continue in
force on or after termination of this License which
shall include clause 6 (Data Protection), clause 7
(Limitations), clause 8 (Intellectual Property Rights)
shall remain in full force and effect.
9.6 Reserved
1 TERMS AND CONDITIONS FOR THE SUPPLY OF PRODUCTS AND
SERVICES
ATTACHMENT 4
2 1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or federal holiday in the United States.
Business Hours: the period from 9.00 am to 5.00 pm ET on any Business Day.
Charges: means any charges paid under the applicable Order Form.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8.
Confidential Information: means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, prospects, or other affairs), that is disclosed to a party during the term of this Contract and that the party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information also includes all information related to the design, specifications, and workings of the Hardware. Confidential Information does not include any information that: (1) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Contract; (2) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (3) is acquired by the receiving party from another source without restriction as to use or disclosure; or (4) is or becomes part of the public domain through no fault or action of the receiving party.
Contract: the contract between the Supplier and the Customer for the supply of Products and/or Services in accordance with these Conditions, consisting of these Conditions, any Order Form accepted by the Supplier in accordance with clause 2.2 and any associated EULA between the Customer and the Supplier.
Customer: City of San Bruno
Data Protection Law: applicable laws and regulations relating to the processing, privacy, and use of Personal Data,.
Deliverables: the deliverables set out in the Order Form produced by the Supplier for the Customer.
Device: an electronic device e.g., PC, laptop, server owned or within the exclusive control of the Customer, and capable of executing the Product in a timely fashion.
Effective Date: the effective date of the Contract as set out in the Order Form.
3 EULA: The end user license agreement as between the Supplier and the Customer in respect of the Products provided under these Conditions.
Excluded Claims: a party’s gross negligence, willful misconduct, violation of applicable law, or Customer’s indemnification obligations.
Force Majeure Event: has the meaning given to it in clause 17.
Intellectual Property Rights / IPR: patents, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, rights in goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
IPR Claim: means any actual claim by a third party in relation to an actual or potential breach by the Supplier or the Customer of third party Intellectual Property Rights.
Order Form: the Customer's order for the supply of Products or Services.
Optional Services: the optional services purchased by the Customer as set out in the Order Form.
Personal Data: means personal data or personally identifiable information, as each is defined under Data Protection Law.
Products: the products (or any part of them) set out in the Order Form.
Products Specification: any specification for the Products, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier or referred to in the applicable Order Form.
Services: the services, including the Deliverables, the Support Services and any Optional Services, supplied by the Supplier to the Customer as set out in the Order Form.
Service Commencement Date: the date on which the Services commence as outlined in the Order Form.
Service Term: the term in which the relevant Services are being provided (if different to the License Period), as outlined in the Order Form;
Software Audit: the process for ensuring compliance with fair use as outlined in clause
12. Supplier: Forensic Analytics Inc., a Delaware corporation.
Supplier Materials: has the meaning given in clause 8.1(g).
Support Services: those maintenance and support services set out in the Order Form;
4 Warranty Period: has the meaning given in clause 5.1.
2. Basis of contract
2.1 The signed Order Form constitutes an offer by the Customer to purchase Products or Services in accordance with these Conditions.
2.2 The Order Form shall only be deemed to be accepted when the Customer signs and returns the Order Form to the Supplier and the Contract shall come into effect when the Supplier issues written acceptance of the Order Form. Each Order Form shall constitute a separate ‘Contract’ between the parties.
2.3 If requested by the Supplier, the Customer shall enter into a EULA in relation the Products.
2.4 These Conditions and if applicable, any EULA between the Customer and the Supplier, apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
2.6 Any applicable EULA should be read alongside these Conditions. In the event of an inconsistency or conflict between the Order Form, these Conditions and any EULA, they shall be applied in the following order of precedence:
(i) Order Form
(ii) the Conditions
(iii) any EULA (if applicable)
3. Products
3.1 The Products are described in the Supplier's catalogue as modified by any applicable Products Specification.
3.2 Reserved.
3.3 The Supplier reserves the right to amend the Products Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
5 4. Delivery of Products
4.1 The Supplier shall use commercially reasonable efforts to deliver and where applicable install the Product on the Customer's Device, on the date specified in the Order Form, but shall not be liable for any cost or damage caused by late or non-delivery. For the avoidance of doubt, dates and times for the delivery of Products are estimates only, and time shall not be of the essence for the delivery of Products.
4.2 IF THE SUPPLIER FAILS TO DELIVER THE PRODUCTS, ITS LIABILITY SHALL BE LIMITED TO
THE COSTS AND EXPENSES INCURRED BY THE CUSTOMER IN OBTAINING REPLACEMENT
PRODUCTS OF SIMILAR DESCRIPTION AND QUALITY IN THE CHEAPEST MARKET AVAILABLE, LESS THE PRICE OF THE PRODUCTS. THE SUPPLIER SHALL HAVE NO LIABILITY
FOR ANY FAILURE TO DELIVER THE PRODUCTS TO THE EXTENT THAT SUCH FAILURE IS
CAUSED BY THE CUSTOMER'S FAILURE TO PROVIDE THE SUPPLIER WITH ADEQUATE
DELIVERY INSTRUCTIONS OR ANY OTHER INSTRUCTIONS THAT ARE RELEVANT TO THE SUPPLY OF THE PRODUCTS.
5. Quality of Products
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Products shall:
(a) conform in all material respects with their description and/or any applicable Products Specification; and
(b) be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Products; and (c) the Customer (if asked to do so by the Supplier) returns such Products to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full provided that the Customer provides written confirmation that any Products containing software have been removed from all Devices.
5.3 The Supplier shall not be liable for the Products' failure to comply with the warranty set out in clause 5.1 if:
6 (a) the Customer makes any further use of such Products after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's written instructions as to the use or maintenance of the Products; (c) the defect arises as a result of the Supplier following any specification supplied by the Customer;
(d) the Customer alters or repairs such Products without the written consent of the Supplier; or
(e) the defect arises as a result of negligence, or abnormal working conditions of Customer.
5.4 The remedies in this clause 5 are Customers sole and exclusive remedy for the Supplier’s only liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 5.1.
5.5 These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
5.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT , THE PRODUCTS AND ALL OTHER SERVICES AND MATERIALS ARE PROVIDED BY SUPPLIER “AS IS”. NEITHER SUPPLIER NOR
ITS LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT, ALL OTHER CONDITIONS,
WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR
BE IMPLIED OR INCORPORATED INTO THIS CONTRACT OR ANY COLLATERAL CONTRACT,
WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, ARE HEREBY EXCLUDED AND
DISCLAIMED, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS
TO SATISFACTORY QUALITY , FITNESS FOR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE.
6. Title and risk
6.1 The risk in the Products shall pass to the Customer on completion of delivery and/or installation (where applicable).
6.2 Subject to Clause 6.4, title to the Products shall not pass to the Customer until the Supplier receives payment in full (in cleared funds) for the Products in respect of which payment has become due.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
7 (a) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
6.4 Title in any Products containing software shall in no event pass to the Customer and shall remain with the Supplier.
6.5 The Customer's rights in such Products containing software and restrictions on use are specified in the EULA.
7. Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Order Form in all material respects.
7.2 The Supplier shall use commercially reasonable efforts to meet any performance dates for the Services specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to modify the Services if necessary to comply with any applicable law or regulatory requirement, or if the modification will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 Where Support Services and Optional Services are being provided by the Supplier, the provisions of the addendum on Support Services will apply.
8. Customer's obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order Form and any information it provides to the Supplier are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services; (c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8 (d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; (e) obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start; (f) comply with all applicable laws, including health and safety laws; and (g) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorization.
8.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any negligent act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations in the circumstances set out in this clause 8.2; and (c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8.3 The Customer warrants to the Supplier that, except where expressly agreed in writing by the Supplier, the Customer shall use no more than the number of License Keys purchased under the applicable Order Form.
9. Charges and payment
9.1 The Charges for the Products and/or the Services:
(a) shall be the Charges set out in the Order Form; and (b) in relation to the Products, shall be exclusive of all costs and Charges of packaging, insurance and transport of the Products.
9 9.2 The Supplier reserves the right to increase the Charges for the Services on an annual basis with effect from each anniversary of the Service Commencement Date in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Service Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.
9.3 In respect of the Products, the Supplier shall invoice the Customer as set out in the applicable Order Form.
9.4 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice unless otherwise agreed by the Supplier in writing; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.5 All amounts payable by the Customer under the Contract are exclusive of sales, use, GST , value-added, withholding, or similar taxes or levies that apply (Taxes), whether domestic or foreign, which Customer shall pay in addition, other than Taxes on Supplier’s income .
9.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 15, the Customer may charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue at a rate of 1.5% per month.
9.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of Tax as required by law).
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 Where applicable, the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable license to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
10 10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non- transferable license to copy and modify any materials provided by the Customer to the Supplier until termination of the Contract for the purpose of providing the Services to the Customer.
10.5 If any third party makes an IPR Claim or notifies an intention to make an IPR Claim, against the Customer which arises out of any Product (other than any such claim for which Customer is required to indemnify Supplier pursuant to Section 3.2), Supplier shall indemnify, defend and hold Customer (including its elected officials, officers, directors, agents, attorneys and employees) harmless from such IPR claim; provided, that the Customer shall:
(a) as soon as reasonably practicable, give written notice of the claim to the Supplier, and in no more than 21 days of receipt of such notice; (b) not make 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 withheld or delayed);
(c) give the Supplier and its professional advisers access at reasonable times on reasonable prior notice to its premises and its officers, directors, employees, agents, representatives, advisers, any documentation or materials relevant to the claim, and anything else reasonably requested for the purpose of assessing the claim.
10.6 If any such IPR Claim is successful, or in the Supplier’s reasonable opinion is likely to be made against the Customer, the Supplier shall in its sole discretion and at its expense:
(a) procure for the Customer the right to continue using, developing, modifying or maintaining the Product (or any part thereof) in accordance with these Conditions;
(b) modify the Product so that it does not infringe the Intellectual Property Rights of any third party without materially effecting from its overall performance; (c) replace the Product with non-infringing software having a capability materially equivalent to the infringing Product; or
(d) terminate this Contract immediately by notice in writing to the Customer and refund any Charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Product to the date of termination) on return of the Product and all copies thereof,
11 10.7 This clause constitutes the Customer’s exclusive remedy and the Suppliers only liability in respect of IPR Claims.
11. Data protection
11.1 To the extent applicable, both parties will comply with all applicable requirements of Data Protection Law at all times during the term of the Contract. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Data Protection Law. For the avoidance of doubt, the provisions of this This clause 11 shall control over any obligations in Section 13 with respect to Personal Data (and Personal Data shall not be considered Confidential Information for the purposes of interpretation of Section 13).
11.2 Without prejudice to the generality of clause 11.1, to the extent applicable, the Customer shall ensure that it has all necessary authority, rights, notices, and (where applicable) appropriate consents in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Contract.
11.3 The Customer represents and warrants that any documentation, data, materials or other information provided to the Supplier in connection with the provision of the Services shall not contain any Personal Data and that any such documentation, data, materials or other information that identifies an individual shall be fully anonymized, aggregated and/or redacted so as to not constitute Personal Data prior to its disclosure to the Supplier.
12. Audit
12.1 The Customer shall permit the Supplier and/or its authorized agent upon reasonable advance notice to access to any books, computers, records or other information that relate to the use of the Product for the purposes of ensuring that the Customer is complying with the terms of the Contract, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times. If an audit reveals the use of the Product is not in accordance with the terms of the Contract, and in addition to such other rights and remedies that the Supplier may have under the Contract, the Customer shall:. (a) reimburse the Supplier for the reasonable cost of the audit; and (b) immediately pay to the Supplier such Charges due for any usage by the Customer over and above what is set out in the Order Form.
13. Confidentiality
13.1 Each party shall, during the Contract and in perpetuity, (1) use the other party’s Confidential Information solely for the purpose for which it is provided; (2) not disclose
12 the other party’s Confidential Information to a third party, except as permitted by clause
13.2; and (3) protect the other party’s Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature
13.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 13; and
(b) if either party is required by law to disclose the other party’s Confidential Information, or if Customer receives a request under the Public Records Act, the disclosing party must give prompt written notice of the requirement or request before the disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
13.3 No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14. Limitation of liability
14.1 EXCEPT FOR EXCLUDED CLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER PARTY (NOR ITS LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF
OR RELATED TO THIS CONTRACT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS,
FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT,
SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
14.2 EXCEPT FOR EXCLUDED CLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE L AW, SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION
WITH THIS CONTRACT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER
ANY ACTION OR CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER
AN INDEMNITY OBLIGATION, OR OTHERWISE SHALL IN ALL CIRCUMSTANCES BE LIMITED
IN AGGREGATE TO AN AMOUNT EQUAL TO THE CHARGES PAID BY CUSTOMER TO SUPPLIER IN THE 12 (TWELVE) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
14.3 This clause 14 shall survive termination of the Contract.
13 15. Termination
15.1 Save where these Conditions have been terminated as a result of non-payment by Customer and subject to clause 15.2, these Conditions will continue to remain in effect with respect to ongoing Contracts that are in effect prior to the termination of these Conditions. Upon termination of this Contract, the Supplier may terminate upon written notice any Contracts that are still in force upon the date of such termination.
15.2 Any Contract shall be effective as of the Effective Date and shall, unless terminated in accordance with these Conditions, continue in effect until expiration of such License Period or Service Term (as applicable).
16. Consequences of termination
16.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's undisputed outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or Products which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them.
Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
17. Force majeure
Except with respect to Customer’s payment obligations hereunder, neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (a Force Majeure Event), so long as the so long as the non-performing party
14 uses all commercially reasonable efforts to avoid or remove the causes of non- performance.. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 1 month, the party not affected may terminate the Contract by giving 30 days written notice to the affected party.
18. General
18.1 Assignment and other dealings
(a) The Supplier shall not assign, transfer, or subcontract, any of its rights and obligations under the Contract without the prior written consent of the Customer.
(b) The Customer shall not assign, transfer, or subcontract any of its rights and obligations under the Contract without the prior written consent of the Supplier.
18.2 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class mail or other next working day delivery service at its principal place of business; or (ii) sent by email to the email address specified in the Order Form (or an address substituted in writing by the party to be served). (b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class mail or other next working day delivery service, at 9.00 am on the second Business Day after posting; or (iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume. (c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
15 18.4 Waiver. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorize either party to make or enter into any commitments for or on behalf of the other party.
18.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties. (b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
18.7 Third party rights.
(a) The Contract does not give rise to any third-party rights to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
18.8 Amendment.
(a) No amendment of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorized representatives).
18.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Delaware without regard to any conflicts of law provisions that would require the application of another state’s law.
Jurisdiction. Each party irrevocably agrees that the courts of the state and federal courts in Wilmington, Delaware shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.