1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation set out in this clause 1 apply to this EULA in its entirety:
“Charges” means the Charges for the Service calculated in accordance with the Order Form from time to time.
“Confidential Information” means algorithms, trade secrets, know-how and confidential and proprietary information (including without limitation concepts and information), technical and research data, specifications, techniques, methods and processes, formulae, designs, product development data and financial and business information and including without limitation the Customer Data;
“EULA” the End User Licence Agreement which comprises the Order Form, these Terms of Use and the Schedules;
“Hosted Solution” means a Service which incorporates hosting of the Platform Software by or on behalf of Supplier and the access by the Customer’s end-users to the Platform Software via the internet. Further details with respect to the Hosted Solution are as set out in the Order Form
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;
“Minimum Spec” means the minimum specification of hardware and software required before the Customer can access the Service as an On-Prem or Hosted Solution as the case may be, in each case as set out in the Order Form;
“On-Prem Solution” means the Service which incorporates hosting the Platform Software on the Customer’s own systems or on a hosting service procured directly by Customer, as further described in the Order Form;
“Partner” means the XpertRule distribution partner identified in the Customer’s Order Form through which the Customer has purchased access to use the Service (where applicable).
“Platform Software” means the specific programs and modules which are included in the Service, as specified in the Order Form, all rights in which are owned by XpertRule = which the Supplier either owns or has the right to license to the Customer in accordance with these Terms of Use
“Service” means the service of allowing the Customer access to the Platform Software via either a Hosted Solution or an On Prem Solution as specified in the Order Form.
“Special Term” means a term included within the Order form which amends, adds to or abrogates any of these terms of use.
“Supplier” means either XpertRule or the Partner (as applicable).
“Support” means the support and maintenance included in the Service as set out in the Support Schedule and specified in the Order Form;
“Xpert Unit” means a unit of measure which the Customer can apply to its consumption of both Intelligent Dialog and Decision Services within the Platform Software as follows: 1 Xpert Unit = 1 transaction (for Decision Services), or 100 Xpert Units = 1 concurrent user/month (for Intelligent Dialog);
1.2 A reference to “the Customer” shall, where the context so requires and where the Customer is a company or other organisation, include reference to such members of the Customer’s organisation or company as the Customer shall have authorised to use the Service on its behalf.
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to any party shall include that party’s personal representatives, successors or permitted assigns.
1.5 A reference to a statute, statutory provision or subordinated legislation is a reference to it as it is in force from time to time.
1.6 In the event of any conflict between the elements of the EULA, the order of precedence is as follows:
1.6.1 The Order Form (including any Special Terms and Schedules to the Order Form)
1.6.2 These Terms of Use
1.6.3 Any Schedules to these Terms of Use.
2. CHARGES
2.1 The Customer is to pay to Supplier the Charges defined in the Order Form and in accordance with the payment terms defined in the Order Form.
2.2 Both the On-Prem Solution and the Hosted Solution permit the Customer to use the Service based on a consumption-based pricing model, and the Customer is allocated a specific quantity of Xpert Units which will be set out in the Order Form. If the Customer’s usage of the Service exceeds the number of Xpert Units for which the Customer has subscribed, the Supplier and the Customer will discuss increasing the Customer’s allocation as required to ensure the Customer’s allowance is appropriate to its actual usage, and the Customer acknowledges that additional Charges may be due where its consumption exceeds the allowance allocated at the time of entering into the original Order Form.
2.3 Unused Xpert Units may be rolled over to the next year of the Initial Term, but the Customer shall not be entitled to any refund in respect of any unused Xpert Units at the end of the Initial Term.
2.4 Any usage-based or variable charges will be calculated in accordance with the principles set out in the Order Form and will be invoiced at such other interval as is set out in the Order Form.
2.5 Fees which remain unpaid more than 30 days after the date of invoice shall bear interest from that date until the date of payment at the rate of 2% above Bank of England base rate from time to time.
3. USE AND CUSTOMER OBLIGATIONS
3.1 In relation to the Service:
3.1.1 Supplier grants to the Customer on and subject to the terms and conditions of this EULA the right to access the Service solely for the Customer’s business purposes on the terms appearing below;
3.1.2 In the event that the Customer hires an Outsourcer/sub-contractor to perform a specific function then Supplier agrees to grant to Outsourcer/Sub-contractor a one-time licence to access the Service and perform the same function that the Customer was previously using/accessing and the Customer will remain liable for any additional charges and for all acts or omissions of the Outsourcer/sub-contractor as if they had been incurred or carried out by the Customer.
3.1.3 the Customer shall not:
3.1.3.1 attempt to duplicate, modify or distribute any portion of the Platform Software; or
3.1.3.2 attempt to reverse decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Platform Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
3.1.3.3 store, distribute or transmit any material through the Service that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; that facilitates illegal activity; that depicts sexually explicit images; that promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
3.1.4 Save as specifically set out in these Terms of Use the Customer shall not:
3.1.4.1 use the Service to provide services to third parties; or
3.1.4.2 transfer, temporarily or permanently, any of its rights under this EULA; or
3.1.4.3 attempt to obtain, or assist others in obtaining, access to the Service, other than as provided under this clause 3.
3.2 The Customer acknowledges that it is its responsibility to ensure that it meets the Minimum Spec required to enable use of the Service. Supplier shall have no responsibility for any failure to access or use the Service or the Platform Software resulting from the Customer’s failure to meet the Minimum Spec.
3.3 The Customer undertakes to only use the Service in accordance with Supplier’s instructions. Supplier shall have no responsibility for any failure to access or use the Service which results from the Customer’s misuse, adaptation, mutation or incorrect application of the Service of the Platform Software.
3.4 The Customer shall be responsible for ensuring that where the Customer allows its end-users to utilise the Service and the Platform Software on its behalf, those end-users are aware of, and comply in full with, the terms and conditions of this EULA and do not allow any access or password information to be shared with anyone other than employees of the Customer or other authorised end-users.
3.5 The Customer shall report any fault with the Service and/or the Platform Software as soon as reasonably practicable from such fault coming to the Customer’s attention.
3.6 The Supplier will offer Support for the Platform Software as detailed in the Order Form and the Support and Maintenance Schedule.
4. ORDERING THROUGH PARTNERS
4.1 The Customer may authorise a Partner to submit to XpertRule an Order Form to purchase access to the Service on the Customer’s behalf. The Customer acknowledges and agrees that: (i) the Partner is not authorised to enter into any agreements with any Customer on behalf of XpertRule; (ii) the Partner is not authorised to make any commitments or give any promises on behalf of XpertRule; (iii) XpertRule has no obligation to the Customer other than those set out in these Terms of Use; (iv) the Partner will determine the Charges applicable to the Customer’s use of the Service and the Customer will pay such amounts to the Partner; and (v) under the terms of the agreement between XpertRule and the Partner, XpertRule is entitled to suspend or terminate the Customer’s access to the Service, in whole or in part, if the Partner notifies XpertRule that the Customer has failed to pay any Charges when they are due.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 The parties agree that:
5.1.1 all Intellectual Property Rights in the Customer Data vest in and shall remain vested in the Customer at all times; and
5.1.2 all Intellectual Property Rights in the Platform Software vest in and shall remain vested in XpertRule at all times.
5.2 The Customer warrants to Supplier that it is the owner or originator of all Customer Data (or where it is not the owner or originator of the data in question, that it has obtained all necessary rights and permissions to use the data from the data’s owner or originator) and the Customer hereby agrees to indemnify and hold harmless Supplier against any and all claims (whether as to the legitimacy of the Customer’s use or otherwise) arising from the Customer’s use of such data.
6. MONITORING
6.1 In entering into this EULA, the Customer acknowledges that Supplier has the capability to monitor the Customer’s usage of the Service and the Customer hereby agrees that Supplier shall have the right, at any time, to monitor the Customer’s usage and usage frequency of the Service and the Platform Software.
6.2 The Customer also acknowledges that Supplier shall also have the right to monitor the Customer’s use of the Service and the Platform Software where Supplier believes (in its sole reasonable opinion) that the Customer is breaching its obligations under clauses 6 or 10.
6.3 Supplier’s rights under this clause shall be subject to the terms of clause 14 Confidentiality
7. ENHANCEMENTS AND MODIFICATIONS
Supplier will notify the Customer of any enhancement or modification to the Service and the Platform Software which affects their operation, performance or cost. Supplier reserves the right to introduce any substitute any Platform Software which will fulfil the same Function as that which it replaces subject to providing the Customer with notice of the same.
8. TERM AND TERMINATION
8.1 The initial term (“Initial Term”) and the start date (“Start Date”) of this EULA is as set out in the Order Form. The Customer shall have no right to terminate the EULA prior to the expiry of the Initial Term.
8.2 Unless either party gives no less than ninety days notice ending on the last day of either the Initial Term or any renewal term, this EULA shall renew for successive periods of twelve months unless and until terminated in accordance with clauses 8.3, 8.4 and 8.5 below.
8.3 Without prejudice to any other rights or remedies which the parties may be entitled to, either party may terminate this EULA immediately upon serving written notice and without liability to the other if the other party:
8.3.1 is involved in any legal proceedings concerning its solvency, or ceases trading, becomes insolvent or is sequestrated or enters into liquidation, whether compulsory or voluntary, other than for the purposes of a bona fide solvent amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has an administrator, receiver, administrative receiver or equivalent appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section 123 or section 268 of the Insolvency Act 1986; or equivalent circumstances occur in any other
jurisdiction.
8.4 Supplier shall also have the right to terminate where the Customer commits a material breach of its obligations under EULA. For the avoidance of doubt, a breach by the Customer of clause 6 or 10 shall automatically be deemed a material breach entitling Supplier to terminate.
8.5 Upon termination of this EULA for any reason:
8.5.1 all licences and rights granted under this EULA shall immediately terminate;
8.5.2 the Customer shall immediately cease using the Service and in particular, the Platform Software save that the Customer shall have one month to use the Service to export a backup of the Customer Data as allowed for by the Platform Software;
8.5.3 where the termination is due to the fault or breach of the Customer, Supplier shall immediately block the Customer’s access and the Customer shall not be entitled to access the Service or the Platform Software, or to use the same;
8.5.4 the obligations in respect of confidentiality under clause 14 below shall apply.
9. WARRANTIES AND LIABILITY
9.1 Supplier undertakes that the Service will be performed using all reasonable skill and care.
9.2 Supplier undertakes that the Platform Software will perform substantially in accordance with any published documentation for the Platform Software. Supplier does not undertake that the Platform Software will perform or be capable of performing functions other than those explicitly specified in any published documentation. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Platform Software or Service contrary to Supplier’s instructions or modification or alteration of the Platform Software by any party other than Supplier or its agents.
9.3 Supplier warrants only to the Customer that the Service when used in accordance with any operating instructions provided will provide the functions and facilities and will perform substantially as described in the user manual supplied for the Platform Software;
9.4 Supplier’s entire liability and the Customer’s exclusive remedy under the warranties given in clause 9.3 will be, at Supplier’s option, to either:
9.4.1 repair, or replace the Software which does not conform with the warranty; or
9.4.2 terminate the Licence and repay to the Customer any unused portion of the licence fee paid by the Customer, calculated on a straight-line pro-rata basis across the initial term or any renewal term of the licence.
9.5 Except for the express warranties set out in clauses 9.3 and 9.4 above, Supplier makes and the Customer receives no other warranties, conditions or representations, express or implied, statutory or otherwise, and without limitation the implied terms of satisfactory quality and fitness for a particular purpose are excluded. Supplier does not warrant that the provision of the Service will be error-free or uninterrupted. It is the Customer’s responsibility to ensure that the Platform Software is suitable for the Customer’s needs and the entire risk as to the performance of the Platform Software is assumed by the Customer.
9.6 In no event will Supplier be liable for any direct, consequential, incidental or special damage or loss or any kind, nor for any loss of
profit, loss of contracts, business interruption, loss of or corruption to data or loss or waste of staff time howsoever caused and whether arising under contract, tort (including negligence) or otherwise.
9.7 Supplier’s liability for direct loss caused by its negligence or breach of contract, and its liability if any exclusion, disclaimer or other
provision contained in this EULA is held invalid for any reason and Supplier becomes liable for loss or damage that could otherwise be limited, whether in contract, negligence or otherwise, will not exceed the amount in Charges paid to Supplier for the Service by the Customer.
9.8 Nothing in this clause 9 shall operate to exclude or limit Supplier’s liability for:
9.8.1 death or personal injury as a result of Supplier’s negligence;
9.8.2 fraudulent misrepresentation;
9.8.3 any other liability which cannot lawfully be excluded.
10. FORCE MAJEURE
10.1 Supplier shall have no liability to the Customer under this EULA if it is prevented from or delayed in performing its obligations under this EULA, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Supplier’s workforce or the workforce of another party), failure of a utility service or transport network, act of God, riot, war, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
11. CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time during this EULA and for a period of three (3) years after termination of this EULA disclose to any individual any Confidential Information of the other party excepting always that:
11.1.1 each party may disclose the other party’s Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this EULA. Each party shall ensure that its employees, officers and representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and
11.1.2 each party may disclose the other party’s Confidential Information where required to do so by law, court order or any governmental or regulatory authority.
11.2 Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this EULA.
12. WAIVER
12.1 A waiver of any right under this EULA is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
13. SEVERANCE
13.1 If any provision (or part of a provision) of this EULA is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
13.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14. ENTIRE AGREEMENT
14.1 This EULA, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
14.2 Each party, upon entering into this EULA, acknowledges and agrees that it does not rely on any undertaking, promise, assurance, statement representation, warranty or understanding (whether in writing or not) of any person (whether a party to this EULA or not) relating to the subject matter of this EULA, other than as expressly set out in this EULA.
15. ASSIGNMENT
15.1 The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this EULA without first obtaining Supplier’s express written consent to do so.
15.2 Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights under this EULA.
16. MISCELLANEOUS
16.1 Nothing in this EULA is intended to or shall operate to create a partnership or relationship of agent and principal between the parties and neither party shall have the authority to bind the other in any way.
16.2 Any notice or required to be given under this EULA shall be in writing and shall be delivered personally, or sent by email, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice at the Address specified in the Order Form.
16.3 This EULA is made for the benefit of the parties to it (and any permitted assigns) and it is not intended to benefit or be enforceable by anyone else.
16.4 This EULA is governed by the laws of England and the parties to it agree to submit exclusively to the jurisdiction of the English courts.