CONTRACT DETAILS
Commencement date: The date on which the software is first downloaded, installed or used in any way outlined below.
PLEASE READ CAREFULLY: THE USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS THAT FOLLOW (“AGREEMENT”), UNLESS THE SOFTWARE IS SUBJECT TO A SEPARATE LICENCE AGREEMENT BETWEEN YOU AND THE LICENSOR OR ITS SUPPLIERS. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, OR BY CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, YOU AGREE TO THE TERMS OF THIS AGREEMENT, ANY APPLICABLE WARRANTY STATEMENT AND THE TERMS AND CONDITIONS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE WITH PROOF OF PURCHASE TO THE PARTY FROM WHOM YOU ACQUIRED IT AND OBTAIN A REFUND OF THE AMOUNT YOU PAID, IF ANY. IF YOU DOWNLOADED THE SOFTWARE, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
LICENSOR
Company Name: THE SMARTTHING LIMITED (company number: 07016770) Registered office: Suite 4. 35c Windsor House, Harrogate, HG1 2PW Contact Email: sales@smartthing.org
LICENSEE
( The user of the software ) As stated above, the use of any software provided by the Licensor indicates acceptance of the terms of this agreement.
KEY LICENCE DETAILS
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Agreement means this software licence agreement, which includes the contract details (as set out at the start of this Agreement), Key Licence Details and the terms and conditions included herein.
Authorised Users means a specific number of personnel engaged by the Licensee as employees, officers, directors or representatives, who are permitted to use the Software and access the Support Services in accordance with this Agreement, as further detailed in the Key Licence Details.
Charges means the payments due from the Licensee to the Licensor for the Software as set out in the Key Licence Details.
Confidential Information means all data or information (whether technical, commercial, financial or of any other type) in any form acquired under, pursuant to or in connection with, this Agreement and any information used in or relating to the business of the parties (including information relating to the parties’ products (bought, manufactured, produced, distributed or sold), services (bought or supplied), operations, processes, formulae, methods, plans, strategy, product information, know-how, design rights, trade secrets, market opportunities, customer lists, commercial relationships, marketing, sales materials and general business affairs), and which are for the time being confidential to the disclosing party.
Data Protection Laws: all applicable data protection and privacy legislation in force in the United Kingdom, including but not limited to: (a) the UK GDPR as defined in section 3(10) of the Data Protection Act 2018, and supplemented by section 205(4) (“UK GDPR”); (b) the Data Protection Act 2018; and (c) the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426), in each case as amended, updated or replaced from time to time, and the term Personal Data shall have the meaning set out in the UK GDPR.
Documentation means the manuals and/or other technical documentation that describe the operation of, and how to use the Software, made available to the Licensee via https://support.smartthing.org or such other web address notified by the Licensor from time to time.
Intellectual Property Rights means copyright, patents, rights in confidential information, know-how, trade secrets, trademarks, trade names, design rights, get-up, database rights, chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and wherever existing.
Good Industry Practice means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances.
Licensee Data the data inputted by the Licensee into the Software or otherwise provided to the Licensor as part of the Licensee’s use of the Software.
Key Licence Details means the information listed at the start of this Agreement, which forms part of this Agreement.
Scope of Use means the scope of use described in the Key Licence Details which sets out how the Licensee may use the Software.
Software means the object code form of the software set out in the Key Licence Details together with any bug fixes, enhancements, or other modifications of the software provided to the Licensee under a separate support and maintenance agreement between the parties.
Support Services means the related support services provided by the Licensor to the Licensee to assist the Licensee with any technical and/or advisory support in connection with the Licensee’s installation and/or use of the Software and/or Documentation.
Term means the Initial Term together with any Renewal Period (if applicable), as specified in the clause titled “term of this agreement” below.
Virus means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network.
Vulnerability means a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability.
1.2 In this Agreement:
1.2.1 clause, schedule and paragraph headings shall not affect the interpretation of this Agreement;
1.2.2 references to statutes, regulations or other legislation or enactments referenced herein shall be deemed to be references to that enactment as amended, supplemented, re-enacted or replaced from time to time;
1.2.3 the words include, including and similar words or expressions will not limit the meaning of the words that come before them;
1.2.4 reference to writing or written includes e-mail but not any other form of electronic communication; and
1.2.5 each of the parties shall be referred to as a party or together, the parties.
2 TERM OF THIS AGREEMENT
2.1 This Agreement shall continue from the Commencement Date for 12 months (“Initial Term“), unless terminated earlier in accordance with the terms of this Agreement. Following the Initial Term, this Agreement will be renewed for successive periods of 12 months (each a “Renewal Period“).
3 THIS LICENCE
3.1 Subject to the terms and conditions of this Agreement, the Licensor hereby grants the Licensee a non-exclusive, non-transferable, paid-up, licence (the “Licence“) to install the Software and use it, and to use the Documentation, for the Term solely for the Scope of Use.
3.2 The Licensee acknowledges that the Software will become inaccessible or unusable (“Time Out“) on expiry of the Term, if this Agreement has not been renewed or a new agreement has not been put in place between the parties prior to expiry of the Term.
3.3 The Licence is in respect of use of the Software by the Licensee and its Authorised Users only and no subsidiaries or holding companies of the Licensee may use the Software.
3.4 Except as expressly permitted in this Agreement, the Licensee will not, and will not permit its employees, officers, directors or representatives or Authorised Users to:
3.4.1 except to the extent allowed by this Agreement, modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part;
3.4.2 reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form;
3.4.3 distribute, sublicence (except as permitted by this Agreement), assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or the Licensee’s right to use the Software under the Agreement;
3.4.4 remove or modify any copyright, trade mark, or other proprietary notices of the Licensor affixed to the media containing the Software or contained within the Software;
3.4.5 use the Software in any manner not expressly authorised by this Agreement;
3.4.6 access, store, distribute or transmit Viruses or any harmful or illegal material or malicious computer programming that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, network or data during the course of its use of the Software;
3.4.7 introduce or permit the introduction of, any Virus or Vulnerability into the Licensor’s network and/or information systems;
3.4.8 assist third parties in obtaining access to the Software (and/or any Support Services) except if reasonably requested by the Licensor;
3.4.9 copy the Documentation;
3.4.10 use the Software in a manner that facilitates or promotes any illegal activity including the use or sharing of content which is illegal, defamatory, obscene, sexually explicit, malicious, discriminatory, violent, deceptive or fraudulent, or infringing of any intellectual property or other right of any third party.
4 SUPPORT SERVICES
4.1 The Licensor shall provide the Support Services set out in the Key Licence Details during the Term.
4.2 The Licensor shall provide the Support Services in accordance with the levels set out in the SLA detailed at https://smartthing.org/service-level-agreement.
5 LICENSEE’S OBLIGATIONS
5.1 The Licensee shall:
5.1.1 provide the Licensor with all necessary co-operation, information, data and access to staff;
5.1.2 provide the Licensor with timely decision-making as is necessary for the Licensor to perform its obligations under this Agreement;
5.1.3 ensure that any personnel and Authorised Users who have access to the Software are using the Software in accordance with the terms and conditions of this Agreement;
5.1.4 ensure that the Licensee’s network and systems comply with all relevant specifications provided by the Licensor in the Documentation or otherwise from time to time;
5.1.5 be responsible for obtaining, maintaining and securing its own internet connection;
5.1.6 notify the Licensor immediately of any suspected or actual unauthorised use of the Software and/or any Support Services);
5.1.7 provide the Licensor with details of the Authorised Users; and
5.1.8 ensure that the Authorised Users are not sharing any individual permissions between users. This means that the number of users of the Software (and any Support Services) shall not exceed the number of agreed Authorised Users.
5.2 The Licensor shall comply with the above obligations as reasonably required by the Licensor to perform its obligations under this Agreement.
5.3 The Licensor shall not be liable for any delay or failure to provide the Software (or the Support Services) which arises as a result of a failure by the Licensee to comply with this clause 5.
6 CHARGES AND PAYMENT
6.1 The Licensor shall issue invoices in respect of the Charges as set out in the Key Licence Details, and the Licensee shall pay to the Licensor the Charges set out in such invoice within 30 days of receipt (“Due Date“), except for any amount in respect of which there is a genuine dispute.
6.2 All Charges are inclusive of value added tax (“VAT“).
6.3 If the Licensor has not received payment before expiry of the Due Date:
6.3.1 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the Bank of England base rate, commencing on the Due Date and continuing until fully paid; and
6.3.2 the Licensor may, without liability to the Licensee, suspend or disable access to and use of the Software (and the Support Services) where any invoices remain unpaid.
7 WARRANTIES
7.1 The Licensor provides the Software on an “as is” basis only, and does not warrant that:
7.1.1 the Licensee’s use of the Software will be uninterrupted or error-free;
7.1.2 the Software will meet the Licensee’s requirements;
7.1.3 the Software will be free from Vulnerabilities or Viruses;
7.1.4 the Software will comply with any of the Licensee’s cybersecurity requirements.
7.2 The Licensee warrants that it shall:
7.2.1 comply with all applicable local and foreign laws and regulations which may govern the use of the Software and Documentation;
7.2.2 use the Software and Documentation only for lawful purposes and in accordance with the terms of this Agreement.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 Except for the Licensee’s right to use the Software as expressly granted in this Agreement, all Intellectual Property Rights in the Software shall vest and remain vested in the Licensor and, if applicable, the Licensor’s licensors.
8.2 To the extent that the Licensee acquires any Intellectual Property Rights in the Software the Licensee will, on the Licensor’s written demand, assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to the Licensor. The Licensee shall execute all such documents and do such things as the Licensor may consider necessary to give effect to this clause at the Licensee’s cost.
8.3 All Intellectual Property Rights in the Licensee Data shall vest and remain vested in the Licensee.
8.4 Neither of the parties shall have any rights to use or present any trademarks owned or used by the other party without that party’s express written consent.
9 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
9.1 The Licensee shall indemnify and hold harmless the Licensor against all liabilities, costs, expenses, damages and losses (including all direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and reasonable legal charges) suffered or incurred by the Licensor arising out of or in connection with the Licensee’s exercise of its rights granted under this Agreement.
10 DATA PROTECTION
10.1 The parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing personal data (including Licensee Data) in connection with this Agreement.
10.2 The Licensee agrees to apply the terms of the data processing addendum available at http://www.smartthing.org/dpa/ (“DPA”), which are hereby incorporated by reference. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to this Agreement shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and any of their Appendices.
11 CONFIDENTIALITY
11.1 Each party agrees that they will not at any time during this Agreement, and for a period of 3 years years after termination or expiry of this Agreement, disclose to any person any Confidential Information belonging to the other party except as permitted by this clause 11.
11.2 The parties acknowledge that the Licensee Data is the Licensee’s Confidential Information.
11.3 Each party may disclose the other party’s Confidential Information:
11.3.1 to those of its employees, officers, representatives, including the Authorised Users of the Licensee, 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 this Agreement. Each party will ensure that its employees, officers, representatives or advisers, including Authorised Users of the Licensee to whom it discloses the other party’s Confidential Information are aware of that party’s obligations under this clause 11; and
11.3.2 as may be required by law, a court or any governmental or regulatory authority.
11.4 No party will 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 this Agreement.
12 LIMITATION OF LIABILITY
12.1 Except as expressly and specifically provided in this Agreement:
12.1.1 the Licensee assumes sole responsibility for its use of the Software and Documentation and any results it obtains; and
12.1.2 the Licensor excludes all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, to the fullest extent permitted by applicable law.
12.2 Neither party excludes nor limits any liability for:
12.2.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of that party or its employees;
12.2.2 fraud or fraudulent misrepresentation;
12.2.3 any other liability to the extent it cannot be excluded or limited by law; or
12.2.4 under any indemnity in this Agreement.
12.3 Subject to clause 12.2, the Licensor shall not be liable in negligence, contract, misrepresentation, restitution, for breach of statutory duty or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
12.4 The Licensor shall not be liable for the losses for which the Licensor assumes responsibility, which include:
12.4.1 wasted expenditure;
12.4.2 additional costs of procuring and implementing replacements for, or alternatives to, the Software, including consultancy costs, additional costs of management time and other personnel costs and costs of equipment and materials;
12.4.3 losses incurred by the Licensee arising out of or in connection with any claim, demand, fine, penalty, action, investigation or proceeding by any third party against the Licensee caused by the Licensor’s act or omission;
12.4.4 anticipated savings;
12.4.5 loss of, corruption or damage to, data.
12.5. Subject to clause 12.2, the Licensor’s total aggregate liability shall be limited to the value of the annual contract paid by the Licensee for the software.
13 TERMINATION
13.1 Either party may terminate this Agreement by providing no less than 30 days’ written notice to the other party.
13.2 Either party may, without affecting its other rights under this Agreement, by notice in writing to the other party immediately terminate this Agreement if the other:
13.2.1 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction; or
13.2.2 ceases or suspends, or threatens to cease or suspend, the carrying on of any part of its business.
13.3 The Licensor may terminate this Agreement immediately on notice in the event that the Licensee breaches any term of this Agreement.
13.4 Upon any such termination or expiration, unless otherwise agreed in writing:
13.4.1 the Software will Time Out (as defined above);
13.4.2 the Licensor will cease the provision of the Support Services to the Licensee;
13.4.3 the rights and licences (including the Licence) granted to the Licensee under this Agreement will terminate; and
13.4.4 the Licensee will immediately cease all use of the Software and Documentation and return all copies of the same to the Licensor together with all other Confidential Information (as defined above) in its possession provided by the Licensor within five days of termination. The Licensee will certify in writing to the Licensor its compliance with the foregoing.
14 UNCONTROLLABLE EVENTS
14.1 Neither party shall 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 result from any Uncontrollable Events.
14.2 In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 45 days, the party not affected may terminate this Agreement by giving 30 days’ written notice to the affected party.
14.3 In this clause 14, “Uncontrollable Events” means an event outside the party’s reasonable control including, without limitation: natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war or armed conflict, nuclear, chemical or sonic boom, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party).
15 GENERAL
15.1 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. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
15.2 Costs: Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
15.3 Survival of terms: The parties intend the following terms to survive termination of this Agreement:
Clause 1
Clause 10
Clause 11
Clause 12
Clause 13
Clause 15
15.4 Relationship of the parties: The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
15.5 Assignment and other dealings: No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other party’s prior written consent or except as expressly permitted in this Agreement.
15.6 Entire agreement: This Agreement, and any document referred to in it, contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly referred to in this Agreement. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not covered in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
15.7 Variation: No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
15.8 Severability: If any clause in this Agreement (or part of a clause) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part of it) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
15.9 Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
15.10 Notices: Notices under this Agreement must be in writing and sent to the other party’s address or email address, as set out in the Contract Details. Letters sent in the United Kingdom will be deemed delivered 3 business days (excluding English Bank Holidays), after sending. Emails will be deemed delivered the same day (or the next business day, if sent on a non-business day or after 5pm on any business day at the recipient’s location).
15.11 Counterparts: This Agreement may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated will be an original, and such counterparts taken together will constitute one and the same agreement. This Agreement will not be effective until each party has signed one counterpart.
15.12 Governing law and jurisdiction: This Agreement is governed by the laws of England and Wales. All disputes under this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.
