Datapred End User Licence Agreement

PARTIES

1. DATAPRED SA, a company based on EPFL Innovation Park, Building A, 1015 Lausanne, Switzerland, with the company number CHE-428.836.467 (Licensor or Datapred)
2. The Licensee 

SECTION A: AGREEMENT AND KEY DETAILS

AGREEMENT

The Licensor agrees to license the Software to the Licensee on the terms of the Agreement. The Agreement comprises:

• Section A (Agreement and Key Details), and
• Section B (General Terms). 

KEY DETAILS 

SECTION B: GENERAL TERMS 

1. INTERPRETATION

1.1. Additional definitions

In the Agreement, the following terms have the stated meaning:

1.2. Interpretation 

In the Agreement:

1. Clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
2. Words in the singular include the plural and vice versa;
3. A reference to: (i) a party to the Agreement includes that party’s permitted assigns; (ii) personnel includes officers, employees, contractors and agents, but a reference to the Licensee’s personnel does not include the Licensor; (iii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity; (iv) including and similar words do not imply any limit; and (v) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
4. No term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
5. If there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.

2. LICENCE

The Licensor grants to the Licensee, and the Licensee accepts, a nonexclusive and non-transferable License for the duration of the Agreement to use the Software and the Documentation solely for the Approved Purpose within the Territory and on the terms and conditions of the Agreement.

3. LICENCE CONDITIONS

3.1. Conditions 

The Licensee must:

1. Use the Software and the Documentation for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-license or otherwise deal in the Software or the Documentation except: (i) as expressly provided for in the Agreement; or (ii) to the extent expressly permitted by any relevant law or treaty where that law or treaty cannot be excluded, restricted or modified by the Agreement;
2. Ensure the Software and the Documentation are protected at all times from misuse, damage, destruction or any form of unauthorized use, copying or disclosure;
3. Maintain all proprietary notices on the Software and the Documentation;
4. Not transfer, assign or otherwise deal with or grant a security interest in the Software, the Documentation or the Licensee’s rights under the Agreement;
5. Not challenge the Licensor’s ownership, or the validity, of the Software, the Documentation or any other item or material created or developed by or on behalf of the Licensor under or in connection with the Agreement (including the Intellectual Property Rights in those items); and
6. Notify the Licensor in writing immediately after it becomes aware of any circumstance which may suggest that any person may have unauthorized knowledge, possession or use of the Software or the Documentation. 

4. FEES

4.1. Fees

The Licensee must pay the Fees to the Licensor for the Software licence under the Agreement.

4.2. Invoicing and payment

1. The Licensor must provide the Licensee with valid invoices on the dates set out in the Payment Terms, or if there are none, monthly in advance for the Fees due in the following month.
2. The Fees are net of VAT or equivalent taxes the Licensee may have to pay on the supplies under the Agreement.
3. The Licensee must pay the Fees: (i) on the dates set out in the Payment Terms, or if there are none, by the 20^th of the month following the date of invoice; and (ii) electronically in cleared funds without any set off or deduction except to the extent required by law. If the Licensee is required by law to make any deduction, the Licensee must pay the Licensor any additional amount that is necessary to ensure receipt by the Licensor of the full amount which the Licensor would have received but for the deduction.

4.3. Overdue amounts

The Licensor may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Licensor’s primary trading bank as at the due date (or if the Licensor’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum. 

5. INTELLECTUAL PROPERTY

5.1. Retained Intellectual Property

Subject to clauses 5.2, 5.3 and 5.4, the following Intellectual Property remains the property of the current owner:

1. Intellectual Property that existed prior to the Start Date; and
2. Intellectual Property that was developed independently of the Agreement. 

5.2. Software and related IP

From the date of creation or development, the Licensor owns all Intellectual Property Rights in:

1. The Software and the Documentation; and
2. Any other item or material created, developed or provided by or on behalf of the Licensor under or in connection with the Agreement. 

5.3. Feedback 

If the Licensee provides the Licensor with ideas, comments or suggestions relating to the Software or the Documentation (together Feedback):

1. All Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material enhancements, modifications or derivative works), are owned solely by the Licensor; and
2. The Licensor may use or disclose any Feedback for any purpose.

5.4. Results

The Results are the property of the Licensee.

5.5.  IP indemnity

1. The Licensor indemnifies the Licensee against any claim or proceeding brought against the Licensee in the Territory to the extent that claim or proceeding alleges that the Licensee’s use of the Software in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights in the Territory (IP Claim). The indemnity is subject to the Licensee: (i) promptly notifying the Licensor in writing of any IP Claim; (ii) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Licensor’s prior written consent; and (iii) giving the Licensor complete authority and information required for the Licensor to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Licensor’s account.
2. The indemnity in clause 5a does not apply to the extent that an IP Claim arises from or in connection with: (i) the Licensee’s breach of the Agreement; (ii) the use of the Software in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorized in writing by the Licensor; (iii) any third party data or data owned by the Licensee; or (iv) modification or alteration of the Software by a person other than the Licensor.
3. If at any time an IP Claim is made, or in the Licensor’s reasonable opinion is likely to be made, then in defense or settlement of the IP Claim, the Licensor may (at the Licensor’s option): (i) obtain for the Licensee the right to continue using the items that are the subject of the IP Claim; or (ii) modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing.

6. CONFIDENTIALITY 

6.1. Security

Each party must, unless it has the prior written consent of the other party:

1. Keep confidential at all times the Confidential Information of the other party;
2. Effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
3. Disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clause 1a and 6.1b.

6.2. Permitted disclosure

The obligation of confidentiality in clause 6.1 does not apply to any disclosure or use of Confidential Information:

1. For the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
2. Required by law (including under the rules of any stock exchange);
3. Which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
4. Which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
5. By the Licensor if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Licensor enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.

7. WARRANTIES 

7.1. Mutual warranties

Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

7.2. Licensor warranties

 The Licensor warrants that:

1. To the best of its knowledge, the use of the Software by the Licensee in accordance with the Agreement will not infringe the Intellectual Property Rights of any other person; and
2. During the Warranty Period, the Software will materially perform in conformity with the Documentation although the Licensee acknowledges that the Software is of a technical nature and may not be error-free or bug-free.

7.3. Breach of warranty

Subject to clause 7.4, if the Software does not meet the warranty in clause 7.2b, the Licensor must, at its option and cost, remedy, repair, enhance or replace the defective item so that the Software meets and satisfies that warranty. The remedy, repair, enhancement or replacement of a defective item as described in this clause will be the Licensee’s sole remedy against the Licensor for a breach of warranty under clause 7.2b. 

7.4. Exclusion of warranty cover

The Licensor is not obliged to remedy, repair, enhance or replace any defective item under clause 7.3 to the extent that the defect arises from or in connection with:

1. A modification or alteration of the Software by any person other than the Licensor; or
2. A breach of the Agreement by the Licensee, including use of the Software by the Licensee or its personnel in a manner or for a purpose not reasonably contemplated by the Agreement or not authorized in writing by the Licensor.

7.5. No implied warranties

To the maximum extent permitted by law:

1. The Licensor’s warranties are limited to those set out in the Agreement and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to USD1,000.00; and
2. The Licensor makes no representation concerning the quality of the Software or the Support Services, and does not promise that the Software will be error-free, bug-free, or will operate without interruption.

8. LIABILITY 

8.1. Maximum liability

The maximum aggregate liability of the Licensor under or in connection with the Agreement or relating to the Software or the Support Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed the Fees paid by the Licensee under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Licensee from the Start Date to the date of the first event giving rise to liability). The cap in this clause 8.1 includes the cap set out in clause 7.5a.

8.2. Unrecoverable loss 

Neither party is liable to the other under or in connection with the Agreement for any:

1. Loss of profit, revenue, savings, business, data and/or goodwill; or
2. Consequential, indirect, incidental or special damage or loss of any kind.

8.3. Unlimited liability

1. Clauses 1 and 8.2 do not apply to limit the Licensor’s liability: (i) under the indemnity in clause 6.4a; or (ii) under or in connection with the Agreement for: personal injury or death; fraud or willful misconduct; or a breach of clause 6.
2. Clause 2 does not apply to limit the Licensee’s liability: (i) to pay the Fees; or (ii) under or in connection with the Agreement for breach of clause 2 or 3; or those matters stated in clause 3a.

8.4. No liability for other’s failure

Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel. 

8.5. Mitigation

Each party must take reasonable steps to mitigate any loss or damage, cost, or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

9. TERM AND TERMINATION 

9.1. Duration

Unless terminated under this clause 9, the Agreement:

1. Starts on the Start Date and ends on the End Date; but
2. Where there is no End Date, continues for successive terms of 12 months from the Start Date unless a party gives at least 30 days’ notice that the Agreement will terminate on the expiry of the then-current term. 

9.2. Termination rights

1. The Licensor may, by notice to the Licensee, immediately terminate the Agreement if the Licensee: (i) breaches any material provision of the Agreement and the breach is not: remedied within 10 days of the Licensor notifying it of the breach; or capable of being remedied; (ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or (iii) is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
2. The Licensor may, by notice to the Licensee, immediately terminate the Agreement if: (i) the remedies in clause 5c are exhausted without remedying or settling the IP Claim; or (ii) the Licensee fails to install an Update.

9.3. Consequences of termination or expiry

1. Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
2. On termination or expiry of the Agreement, the Licensee must pay all Fees for the rights and services provided prior to that termination or expiry.
3. Each party must, at the other party’s request following the termination or expiry of the Agreement, return to the other party or destroy all Confidential Information of the other party (including, in the case of the Licensee, the Software and Documentation) in the first party’s possession or control.

9.4. Obligations continuing

Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 5, 6, 8, 9.3, 9.4 and 10, continue in force. 

10. DISPUTES 

10.1. Good faith negotiations

Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations. 

10.2. Obligations continue

Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute. 

10.3. Right to seek relief

This clause 10 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief. 

11. GENERAL 

11.1. Force majeure

Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

1. Immediately notifies the other party and provides full information about the Force Majeure;
2. Uses best efforts to overcome the Force Majeure; and
3. Continues to perform its obligations to the extent practicable. 

11.2. Waiver

To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party. 

11.3. Independent contractor

The Licensor is an independent contractor of the Licensee. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

11.4. Notices

A notice given by a party under the Agreement must be delivered to the other party via email to an email address notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address. 

11.5. Severability

1. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
2. If modification under clause 5a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

11.6. Variation

Any variation to the Agreement must be in writing and signed by both parties.

11.7. Entire agreement

The Agreement sets out everything agreed by the parties relating to the Software licence and the Support Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Software licence and the Support Services that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date. 

11.8. No assignment

1. The Licensee may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Licensor, that consent not to be unreasonably withheld. The Licensee remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
2. Any change of control of the Licensee is deemed to be an assignment for which the Licensor’s prior written consent is required under clause 8a. In this clause, change of control means any transfer of shares or other arrangement affecting the Licensee or any member of its group which results in a change in the effective control of the Licensee.

11.9. Law

The Agreement is governed by, and must be interpreted in accordance with, the laws of Switzerland. Each party submits to the jurisdiction of the Courts of Switzerland in relation to any dispute connected with the Agreement.