Company Confidential – Thoughtonomy Inc
END USER LICENSE AGREEMENT
(A) Thoughtonomy is a supplier of software as a service and associated professional services.
(B) The Customer wishes to use Thoughtonomy’s software as a service and receive Thoughtonomy’s professional services and Thoughtonomy wishes to provide the same on the terms of this Agreement.
1 Definitions and Interpretation
In this Agreement the following terms shall have the following meanings
Acceptance the Customer’s acceptance of the Thoughtonomy Software in accordance with Clause 3.2
Affiliate as to a Party, any other person that directly or indirectly controls, or is controlled by or under common control with such entity, with ‘control’ as applied to any person being the direct or indirect ownership of more than fifty percent (50%) of the equity or voting interest in such person
Commencement Date the date specified in Schedule 1 and any subsequent Schedules to this agreement
Confidential Information any and all information (whether oral, written or in some other tangible or permanent form) disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise obtained by the Receiving Party under or in connection with this Agreement and that is marked as confidential, by its nature is confidential or relates to the business or affairs of the Disclosing Party including any License Key
Deliverables any and all software, documents, information, data, ideas, concepts, know-how, techniques and other material, things or items arising from or produced or supplied by Thoughtonomy in the course of the provision of the Support Services
Environment the hardware and/or location specified by Thoughtonomy in its Manuals
Expenses any travel, accommodation, subsistence and other expenses incurred by Thoughtonomy in providing the Support Services
Initial Period the period specified in Schedule 1 and any subsequent Schedules to this agreement
Intellectual Property Rights any and all intellectual property rights including patents, trademarks, design rights, copyright, rights in databases, Know-How, Look and Feel, domain names and all similar rights (whether or not registered or capable of registration and
whether subsisting in any part of the world) together with any and all goodwill relating or attached thereto and all extensions and renewals thereof
Know-How know-how, confidential information, trade secrets, experience, drawings, designs, production methods, code, notes, flow charts discoveries, specifications, diagrams, technology, research, methods of formulation, results of tests and field trials, specifications of materials, composites of materials, formulae and processes and technical information including the benefit of all related obligations of confidentiality
Knowledge Support assistance regarding use of the Thoughtonomy Software, as specified in the Thoughtonomy Maintenance and Support terms, provided to the Customer from time to time
License the license to use the Thoughtonomy Software which is described in Clause 3
License Fee the fee payable in respect of the Initial Period as specified in Schedule 1
License Key license keys, codes or files provided by Thoughtonomy which allow the Customer to use the Thoughtonomy Software subject to the terms and conditions of this Agreement
Look and Feel graphics, website navigation methods, HTML code, meta-tag structures and similar
Manuals the user manuals, help files, release notes and other documentation published by Thoughtonomy that is made available to the Customer in connection with the Thoughtonomy Software
Payment Terms the terms for payment of Thoughtonomy invoices specified in Schedule 1 and any subsequent Schedules
Service Levels the service levels specified in the Thoughtonomy Maintenance and Support Terms
Supply Agreement the Schedule 1 and any subsequent Schedules to this agreement between the Customer and Thoughtonomy for the supply of the Thoughtonomy Software and other services
Support Services the maintenance and support services specified in the Thoughtonomy Maintenance and Support Terms current from time to time
Term the Initial Period
Thoughtonomy Software the software as a service specified in Schedule 1 including any proprietary or third party software as may be supplied by Thoughtonomy pursuant to this Agreement from time to time, including any developments, modifications and/or variations thereto and including the Manuals
Virtual Worker a concurrent session executing on a run-time instance of the Thoughtonomy Software
1.1 Headings are included in this Agreement for convenience only and do not affect its construction or interpretation.
1.2 Any reference to a Clause or Schedule shall (unless expressly provided otherwise) be a reference to a Clause of or Schedule to this Agreement. The Schedules shall have the same force and effect as if set out in the body of this Agreement. In the event of conflict between the terms in the body of this Agreement and the Schedules, the terms in the body of this Agreement shall take precedence.
1.3 Any reference in this Agreement to any statute, law, statutory instrument, enactment, order, regulation or other similar instrument having the force of law shall be deemed to include any lawful amendment, re-enactment, extension, replacement, modification, consolidation and/or repeal thereof.
1.4 Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders including the neuter gender.
1.5 Any reference to a person shall, unless the context otherwise requires, include natural persons, firms, partnerships, corporate bodies, unincorporated bodies, corporations, associations and all other legal persons of whatever kind howsoever constituted.
1.6 the words “include”, “including” and “included” shall, unless otherwise stated in this Agreement, be interpreted to mean “ including, but not limited to”.
1.7 References to agreement, agreed, approval, consent or permit shall be interpreted to include, unless specifically stated otherwise,
Company Confidential – Thoughtonomy Inc.
the words “such agreement, approval, consent or permission not to be unreasonably withheld, delayed or conditioned”.
2 Basis of Agreement
2.1 In consideration of the Customer paying the License Fee , Thoughtonomy shall:
grant the License to the Customer; and
provide the Support Services to the Customer,
on and subject to the terms and conditions of this Agreement.
3 License to access and use the Thoughtonomy Software
3.1 Subject to Clause 3.3, and in consideration of the Customer paying the License Fee, Thoughtonomy hereby grants to the Customer a non-exclusive and non-transferable license to use the Thoughtonomy Software (in object code only) in the Environment during the Term in accordance with the terms and conditions of this Agreement.
3.2 The Thoughtonomy Software shall be deemed to have been accepted by the Customer on the earlier of:
30 days following the Commencement Date (provided always that the Customer (acting reasonably) has not notified Thoughtonomy of any material reason for non-acceptance); or
any live use by the Customer.
3.3 If the Customer fails to pay any License Fee in accordance with the terms of this Agreement or is otherwise in breach of its obligations under this Agreement, Thoughtonomy shall be entitled to suspend or terminate the whole or any part of this Agreement.
3.4 The license in Clause 3.1 is the Customer’s sole right in relation to the Thoughtonomy Software. The Customer does not own or have any other rights in relation to the whole or any part of the Thoughtonomy Software and shall not purport or represent to do so.
3.5 Save as permitted by law or this Agreement, the Customer shall not be entitled to:
copy, translate, reverse engineer, reverse assemble, modify, adapt, create derivative works, decompile, merge, separate, disassemble, determine the source code of or otherwise reduce to binary code or any other human-perceivable form, the whole or any part of the Thoughtonomy Software;
sublease, lease, assign, sell, sub-license, rent, export, re-export, encumber, permit concurrent use of or otherwise transfer or grant other rights in the whole or any part of the Thoughtonomy Software;
provide or otherwise make available the Thoughtonomy Software in whole or in part in any form to any person, without prior written consent from Thoughtonomy; or
use or permit the use of the whole or any part of the Thoughtonomy Software in such a way as to subject the whole or any part of the Thoughtonomy Software to an open source license or scheme in which there is or could be interpreted to be a requirement that as a condition or consequence of its use or distribution, the Thoughtonomy Software could be disclosed or distributed in source code form, licensed for the purpose of making derivative works or redistributable at no charge.
3.6 Thoughtonomy reserves the right at any time to make any improvement, substitution or modification in the design, manufacture or configuration of the Thoughtonomy Software provided that any such improvement, substitution or modification shall not result in any material change in the functionality or performance of the Thoughtonomy Software.
3.7 If the Customer wishes to enter into an outsourcing facilities management or bureau services arrangement with a third party provider, (the “Outsourcing Service Provider”), Customer shall identify the Outsourcing Service Provider to Thoughtonomy, which hereby consents to the Outsourcing Service Provider’s use of the Thoughtonomy Software and Manuals and receipt of the Services in accordance with Clause 3.8 below.
3.8 The Outsourcing Service Provider will be permitted to use the Thoughtonomy Software and the Manuals solely for the purpose of providing services to Customer and its Affiliates as permitted under this Agreement but only once the Outsourcing Service Provider has entered into a written undertaking with Thoughtonomy (such undertaking to be in a form reasonably specified by Thoughtonomy).
3.9 The Customer may perform any of its obligations or exercise any of its rights under this Agreement by itself or through any Affiliate provided that:
any act or omission of any such person shall be deemed to be the act or omission of the Customer; and
any such performance and/or exercise shall be solely for the business purposes of the Customer and its Affiliates and not for the purpose of providing bureau or outsourced services to any third party;
any claim from an Affiliate shall be brought through the Customer and the exclusions of and caps on liability detailed in this Agreement shall apply in aggregate to all claims brought by the Customer and its Affiliates.
3.10 Where third party suppliers are required to interface with or otherwise affect (or are affected by) the Thoughtonomy Software, Thoughtonomy shall at the Customer’s request and expense co-operate with such suppliers and shall provide such information as such suppliers shall reasonably require (on such notice as is reasonable in the circumstances and subject to such reasonable conditions as to confidentiality, security and non-interference as Thoughtonomy may propose).
3.11 Thoughtonomy shall have the right during the term of this Agreement to audit and/or inspect the Customer’s facilities and/or records to verify the Customer’s use of the Software and compliance with this Agreement. Such audits shall be carried out not more than once in any year of the Term and on reasonable notice by Thoughtonomy and/or its selected external auditor. The Company shall provide Thoughtonomy and its audit team with access to its relevant records and facilities. Thoughtonomy shall comply with the Customer’s standard security and health and safety policies notified in writing a reasonable time in advance of such visit.
4.1 Each party shall:
keep the other party’s Confidential Information confidential;
not use the other party’s Confidential Information except for the purposes of this Agreement without the prior written consent of the other party; and
not divulge the other party’s Confidential Information to any third party except for the purposes of this Agreement and shall procure that each such third party is aware of and complies with these obligations as to confidentiality.
The provisions of Clause 4.1 shall not apply to any Confidential Information that the Receiving Party can show:
is in the public domain other than as a result of a breach of this Agreement or any other obligations of confidentiality;
is or was lawfully received from a third party not under an obligation of confidentiality with respect thereto;
is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required); or was developed independently of and without reference to any confidential information disclosed by the disclosing party.
4.2 Neither party shall make or issue any announcement or public circular relating to the subject matter of this Agreement without the prior written approval of the other save that Thoughtonomy and any VAR or OEM partner as applicable shall be entitled to publicise the relationship formed by the parties’ collaboration under this agreement.
5 Provision of Support Services
5.1 Thoughtonomy shall provide the Support Services in accordance with the Thoughtonomy Maintenance and Support Terms.
6 Intellectual Property Rights
6.1 As between Thoughtonomy and the Customer, all rights, title and interest (including
Company Confidential – Thoughtonomy Inc.
all Intellectual Property Rights) in and to the Thoughtonomy Software and the Manuals (the “Thoughtonomy Elements”) shall remain vested in Thoughtonomy absolutely.
6.2 The Customer shall not delete or in any manner alter the copyright notices, trademarks, logos or related notices or other proprietary rights notices appearing on Thoughtonomy Elements.
6.3 Subject to Clauses 6.5 and 6.6 below and the Customer’s compliance with the terms of this Agreement, Thoughtonomy agrees to indemnify the Customer against any claims, suits or proceedings brought by a third party against the Customer to the extent that such claim, suit or proceedings is based upon an allegation that the Thoughtonomy Software as delivered to the Customer when used within the scope of this Agreement directly infringes the Intellectual Property of any third party (an “Infringement Claim”).
6.4 Subject to Clauses 6.5 and 6.6 below and the Customer’s compliance with the terms of this Agreement, Thoughtonomy shall pay all damages, costs and expenses (including reasonable legal fees) finally awarded against the Customer by a court of competent jurisdiction (or settlements agreed to in writing by Thoughtonomy) directly attributable to such Infringement Claim.
6.5 Thoughtonomy’s obligations under Clauses 6.3 and 6.4 are expressly conditioned on the Customer:
notifying Thoughtonomy in writing promptly after the Customer becomes aware of an Infringement Claim;
allowing Thoughtonomy sole control of the investigation, defence, and settlement of such Infringement Claim;
cooperating fully and assisting Thoughtonomy in the investigation, defence, and settlement of such Infringement Claim (as reasonably requested by Thoughtonomy); and
making no admission of liability or fault itself or on behalf of Thoughtonomy.
6.6 Notwithstanding the foregoing, Thoughtonomy shall have no liability for any Infringement Claim arising in whole or in part from:
modification of the Thoughtonomy Software by anyone other than Thoughtonomy;
use or combination of the Thoughtonomy Software without Thoughtonomy’s written permission with any other equipment, data, services or software where in the absence of such use the Thoughtonomy Software alone would not have given rise to the Infringement Claim;
use of the Thoughtonomy Software not in accordance with this Agreement or in a manner other than for which it was intended;
use of Thoughtonomy Software for which Thoughtonomy has provided the Customer with
modifications or substitutes where use of such modification or substitute would have prevented the Infringement Claim;
the Customer’s continued use of the Thoughtonomy Software after termination or expiration of this Agreement; or
any Infringement Claim based on the Customer’s activities occurring subsequent to its giving of notice of any claimed infringement unless Thoughtonomy shall have given the Customer written permission to continue to use the allegedly infringing Thoughtonomy Software.
6.7 In the event that any Infringement Claim is made by a third party or in Thoughtonomy’s sole judgment is likely to be made, Thoughtonomy may at its discretion either:
procure for the Customer the right to continue to use the Thoughtonomy Software and/or the Deliverables; or
replace or modify the Thoughtonomy Software and/or the Deliverables to avoid infringement.
6.8 This Clause 6 states the entire obligation and liability of Thoughtonomy with respect to infringement of third party Intellectual Property Rights
7.1 The Customer warrants that: it has full capacity and authority and all necessary consents to enter into and to perform its obligations under this Agreement; and it owns or has any license necessary to enable Thoughtonomy to use any materials and/or information provided by the Customer under or in connection with this Agreement.
7.2 Thoughtonomy warrants that: it has full capacity and authority and all necessary consents to enter into and to perform its obligations under this Agreement; for a period of thirty (30) days after Acceptance the Thoughtonomy Software, when working within the Environment, will, in all material respects have the functionality and performance set out in the Manuals, but for the avoidance of doubt Thoughtonomy does not warrant that the operation of the Thoughtonomy Software shall be 100% uninterrupted or error free; the Support Services shall be provided with reasonable skill and care; it shall provide the Support Services in accordance with the Service Levels; and it shall use generally accepted industry best practice to ensure that no virus, time bomb, trap door or other equipment or software disabling device is introduced by it into the Thoughtonomy Software.
7.3 Except as expressly set out in this Agreement, Thoughtonomy excludes all
warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise to the fullest extent permitted by applicable law.
7.4 In the event of any breach of the warranties at clauses 7.2.1, 7.2.2 and 7.2.5, the Customer’s sole remedy shall be to require Thoughtonomy to correct the Software.
7.5 In the event of any breach of the warranties at clauses 7.2.3 and 7.2.4, the Customer’s sole remedy shall be to require Thoughtonomy to re-perform the relevant Support Services.
8.1 Save as provided within Clause 8.3, Thoughtonomy’s total aggregate liability in respect of all causes of action arising out of or in connection with this Agreement (whether for breach of contract, strict liability, tort (including negligence), misrepresentation or otherwise) (“Claims”) shall not exceed the lesser of: one hundred and twenty five per cent (125%) of the aggregate License Fees paid by the Customer during the period of twelve (12) months prior to the date that such liability arose; and $1,000,000.
8.2 Save as provided within Clause 8.3, Thoughtonomy shall not be liable for any Claim to the extent that the Claim relates to: loss of profits; loss of goodwill; loss of anticipated savings; loss of revenue or business opportunity; loss of data or use of data; injury to reputation; third party losses; or any loss or damage which does not arise as a direct and natural consequence of the default in question, including any indirect, incidental, special, exemplary, punitive or consequential loss or damage,
in each case regardless of the form of action, whether in contract, strict liability or tort (including negligence) and regardless of whether Thoughtonomy knew or had reason to know of the possibility of the loss, injury or damage in question.
8.3 Nothing in this Agreement shall limit or exclude either party’s liability: for death or personal injury resulting from negligence; for fraud or fraudulent misrepresentation; for damage suffered by the other party as a result of any breach by the other party
Company Confidential – Thoughtonomy Inc.
of the conditions as to title and quiet enjoyment implied by applicable law; for breach of Clause 4 (Confidentiality); for breach by the Customer of Thoughtonomy’s Intellectual Property Rights; or for any other liability the exclusion or limitation of which is not permitted by applicable law.
9 Term and Termination
9.1 This Agreement shall commence on the Commencement Date and shall continue for the Initial Period.
9.2 Either party shall be entitled to terminate this Agreement at any time upon notice in writing to the other if the other party commits a material breach of this Agreement which remains un-remedied (if capable of remedy) for more than thirty (30) days after such notice.
9.3 Either party shall be entitled to terminate this Agreement forthwith upon notice in writing to the other party if the other party: makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event; and/or is in breach of any of the obligations of confidentiality specified in Clause 4.
9.4 Upon the termination or expiry of this Agreement for whatever reason, but subject to the terms of the escrow agreement (if any): the Customer will immediately cause all copies of the Thoughtonomy Software to be removed from all computer equipment in its possession or under its control and return to Thoughtonomy or destroy (if authorised by Thoughtonomy in writing to do so) all such copies and any other Thoughtonomy Confidential Information and cause an officer of the Customer to certify in writing that it has done so; and each party’s rights, liabilities and obligations under this Agreement (including the License) shall cease, except that each party’s rights, liabilities and obligations that have accrued prior to such termination or expiry or that are expressly or by implication intended to come into force upon or remain in force following such termination or expiry shall survive any such termination or expiry.
10 Force Majeure
10.1 Save in respect of payment obligations, neither party shall be liable to the other for any failure or delay in the performance of its obligations under this Agreement to the extent that such failure or delay arises due to an event outside that party’s reasonable control,
provided always that the party so affected promptly notifies the other, in writing, of the cause and likely duration of the failure or delay, and provided further that such party takes reasonable steps to mitigate any impact of such event, for example using its disaster recovery plans.
10.2 If either party fails to perform or is delayed in performing its obligations under this Agreement due to such event for a period greater than forty five (45) days or notifies the other in writing that it reasonably anticipates that it will fail to perform or, be delayed in performing its obligations for a period greater than forty five (45) days, then the unaffected party shall be entitled to terminate this Agreement forthwith upon written notice.
12 For the duration of this Agreement and for a period of twelve (12) months thereafter neither party shall without the written consent of the other actively solicit or entice away (or seek to solicit or entice away) from the employment of the other any person employed by the other. This Clause shall not prevent either party from making general, non-specific solicitations for employment via a newspaper, the Internet or any other media or from hiring any employee of the other party who responds to such solicitation.
13 Dispute Resolution
13.1 Without prejudice to the termination provisions in Clause 9, if a party believes in good faith that the other party (Defaulting Party) has breached any material term of this Agreement, that party (Aggrieved Party) will notify the Defaulting Party, in writing setting out in reasonable detail the nature of the alleged breach (Notice of Breach). If the Defaulting Party does not dispute the validity of the Notice of Breach, it will promptly undertake to cure the breach described therein. If the Defaulting Party disputes the validity of the Notice of Breach then the parties will comply with the following provisions.
13.2 Any dispute to be resolved under this Clause 12 will first be submitted for resolution to the representatives of each Party then charged with the administration of this Agreement. If such representatives are unable to resolve the dispute within ten (10) Business Days after the date on which the Notice of Breach is received by the Defaulting Party, then, the dispute will be submitted to the Directors (or persons of comparable authority) of each party for resolution. If such Directors are unable to resolve the dispute within ten (10) Business Days after the date on which the Notice of Breach is received by the Defaulting Party, then each party will be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute.
13.3 Notwithstanding anything in this Agreement to the contrary, the cure period provided in this Agreement for any breach which is the subject of a dispute submitted for
resolution in accordance with this Section will be suspended during foregoing dispute resolution procedures and commence to run on the day after the dispute has been resolved in favour of the Aggrieved Party or the dispute resolution procedures have been exhausted, whichever is applicable.
14.1 Nothing contained in this Agreement shall create a relationship of employer and employee, principal and agent or partnership between the parties. Neither party shall be entitled to bind or pledge the credit of the other or sign any document, enter into any agreement or make any promise on behalf of the other or in any way indicate that it is entitled to do so without the prior written consent of the other.
14.2 Thoughtonomy shall be entitled to subcontract any of its obligations under this Agreement to a third party provided always that Thoughtonomy shall remain primarily responsible for the acts or omissions of such third party under this Agreement.
14.3 Neither party may assign, transfer, mortgage, charge, sub-license or otherwise dispose of the whole or any part of this Agreement without the prior written consent of the other party.
14.4 Any notice or written communication given under or in relation to this Agreement shall be given in writing and shall be delivered by hand (in which case it shall be deemed to have been given at the time of delivery) or sent by special delivery post (in which case it shall be deemed to have been given on the second day after posting) to the other party at its address set out above or to such other address as it has previously notified to the sending party in writing, or by email (in which case it shall be deemed to have been given when sent, unless a mail non-delivery notification has been received by the sender).
14.5 Save as expressly stated in this Agreement, the remedies available to the parties under this Agreement shall not limit or exclude any other rights that either party may have against the other.
14.6 The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party’s right later to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
14.7 The invalidity or unenforceability of any provision of or any part of a provision of or any right arising pursuant to this Agreement shall not affect in any way the remaining provisions or rights, which shall be construed as if such invalid or unenforceable part did not exist.
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14.8 This Agreement contains all the terms agreed by the parties relating to its subject matter and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to this Agreement except as set out in this Agreement. Each party acknowledges and accepts that, in entering into this Agreement, it has not relied upon any representation, undertaking or promise except
as set out herein.
14.9 Save where expressly stated otherwise, nothing in this Agreement shall confer any right or benefit upon any person who is not a party to it whether under an act of law or otherwise.
14.10 No variation of or amendment to this Agreement shall be effective unless made in writing and signed by authorised representatives of the parties.
14.11 This Agreement may be entered into
in any number of counterparts and by the parties on separate counterparts, all of which taken together will constitute one and the same instrument.
14.12 This Agreement (including non-contractual disputes or claims) is governed by the laws of New York without regard to choice of conflicts of law rules, and the parties hereby accept the exclusive jurisdiction of the courts of New York.