SOFTWARE LICENSE AND SAAS TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS TOGETHER WITH ANY ORDER MADE THROUGH THE SITE’S ORDERING LANDING PAGE (“ORDER”) CONSTITUTE A LEGAL AGREEMENT WHICH CONTAINS THE ENTIRE AGREEMENT BETWEEN THE LICENSEE DETAILED IN THE ORDER (“LICENSEE”) AND SLAMCORE LIMITED (“SLAMCORE”) (TOGETHER THE “AGREEMENT”). BY USING ALL OR ANY PORTION OF THE SOFTWARE AND THE SERVICES LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. LICENSEE AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. IF LICENSEE DOES NOT AGREE THEN IT SHOULD NOT USE ANY PART OF THE SOFTWARE OR THE SERVICES. SLAMCORE AND LICENSEE HEREBY AGREE AS FOLLOWS:
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this Agreement:
“Authorised Users” means the employees, agents and contractors of Licensee that are permitted by SLAMcore to access and use the Software and the Services on Licensee’s behalf, pursuant to this Agreement.
“Confidential Information” means (without limitation) all confidential information (however recorded or preserved) disclosed by one party or its employees, officers, representatives or advisers (together “Representatives”) to the other party and the other party’s Representatives, including the terms of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, services, know-how, technical information or trade secrets of the disclosing party.
“Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing and appropriate technical and organisational measures” shall have the meaning as defined in the Data Protection Legislation.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time including the General Data Protection Regulation ((EU) 2016/679), the UK GDPR and the Data Protection Act 2018, which apply to the Processing of Personal Data pursuant to this Agreement.
“Data Subject Request” means a Data Subject request to access, correct, amend, transfer or delete that person’s Personal Data consistent with that person’s rights under the Data Protection Legislation.
“Derived Data” means any data which is derived from Licensee’s use of the Software and the Services, which shall include: (i) any data which is processed and stored as mathematical constructs; (ii) statistical or aggregated data; (iii) Telemetry Data; and (iv) any other analytical and marketing data such as number and duration of user sessions and page visits, and technical reports on the performance of the Service. Derived Data shall not include Personal Data, except where such Personal Data has been anonymised.
“Documentation” means those printed or online instructions, manuals, screens and diagrams distributed or otherwise provided by SLAMcore that pertain to the Software and use of the Services.
“Effective Date” means the date set out in the Order and if not specified shall be the earlier of the date on which the Software is downloaded by the Licensee or the Licensee subscribes for the Services.
“Evaluation Licence” has the meaning set out in clause 2.3.
“Fees” means the fees identified in the Order payable by Licensee to SLAMcore for use of the Software and the Services so combined or for an Evaluation Licence only in respect of the Software (as applicable).
“Improvements” means any: (i) information communicated by Licensee to SLAMcore regarding any new features, functionality, performance, feedback, comments and anything analogous to the same in relation to the Software and/or the Services; and (ii) adaptations, modifications, improvements, enhancements, revisions and anything analogous to the same in relation to the Software and/or the Services in any form or medium whatsoever.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Licensee Data” means the data, which shall include without limitation, all imagery and video footage uploaded or submitted to the Service via the Software by Licensee, and excluding any Derived Data.
“Maintenance Release” means a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
“Modification” means any Maintenance Release or New Version.
“New Version” means any new version of the Software, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“Sensor” meansany electronic measurement device which feeds information into the Software or the Service.
“Services” means SLAMcore’s software as a service solution, as set out in the Order and as may be updated from time to time by SLAMcore, including any related application programming interface(s) and any other cloud software programs operated by SLAMcore and provided to Licensee under this Agreement, together with any related Documentation provided by SLAMcore from time to time.
“Site” means the website operated by SLAMcore through which Licensee may download the Software, accessible via the following URL: slamcore.com.
“Software” means SLAMcore’s software computer program(s) and software development kits downloadable via the Site, as set out in the Order and all Documentation in respect of such program(s) and development kits, and any Modification which is acquired by Licensee during the Term of this Agreement.
“Telemetry Data” means any data relating to the Software’s runtime information (version, application, mode and name of dataset), kernel version, CPU information (name, number of cores, load), RAM information (total and free in bytes), camera or Sensor information (manufacturer, model, serial number, firmware), pose, travelled distance and tracking status.
“Term” means the term of this Agreement as specified in the Order and if not specified shall commence on the Effective Date and continue for an initial term of one calendar month (“Initial Term”) unless terminated earlier in accordance with this Agreement. The Initial Term shall automatically renew for successive periods of one calendar month (each a “Renewal Term”), unless either party provides written notice of non-renewal to the other party at least 30 days before the end of the Initial Term or the then current Renewal Term (as applicable). The Initial Term and the Renewal Term(s) together constitute the Term.
“Territory” means that territory or those territories identified in the Order and if not specified shall be worldwide.
“UK GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
“Virus” means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, data or the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2 In this Agreement: (i) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (ii) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (iii) a reference to writing or written includes e-mail; (iv) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 Any references throughout this Agreement to the Services shall not apply where Licensee uses the Software under an Evaluation Licence.
2. Licence and Scope of Agreement
2.1 Subject to clauses 2.2 and 2.3, where Licensee subscribes to use the Services in conjunction with the Software, then in consideration of the payment of the Fees in accordance with this Agreement, SLAMcore hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence in the Territory for the Term to: (i) download and use the Software; and (ii) access and use the Services, and to permit Authorised Users to access and use the Software and the Services, for its internal business purposes subject to the terms and conditions of this Agreement.
2.2 Subject to clause 2.3, use of the Software for the purposes of clause 2.1 means using the Software in object code form only for the internal business purposes of Licensee, but shall include any act which is reasonably incidental to such use.
2.3 Where Licensee has chosen to use the Software solely for evaluation purposes under an Evaluation Licence, in compliance with the terms and condition of this Agreement, SLAMcore hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence to download and use the Software, and to permit Authorised Users in the Territory for the Term, to use the Software, solely for trialling and evaluating the Software in connection with Licensee’s internal business purposes (“Evaluation Licence”). Where Licensee uses the Software under an Evaluation Licence, it may not use the Software for commercial purposes and it shall not be entitled to access the Services or use the Services in conjunction with the Software.
2.4 Licensee shall not and shall procure that its Authorised Users shall not access, store, distribute or transmit any Viruses or any material during the course of its access to or use of the Software and the Services that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. SLAMcore reserves the right, without liability or prejudice to its other rights: (i) to disable Licensee’s or any Authorised User’s access to any material that breaches the provisions of this clause 2; or (ii) to disable any Authorised Users’ access to the Services in the event of any breach of this clause 2 in its sole discretion.
2.5 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under this Agreement (including without limitation, as may be strictly necessary for Licensee to access and use the Software and the Services in accordance with this Agreement), Licensee shall not, and shall procure that its Authorised Users shall not attempt to, copy (except where it is necessary for the purposes of back-up or operational security), modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and the Services in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software and the Services . Licensee shall not, and shall procure that its Authorised Users shall not attempt to: (i) access all or any part of the Software and the Services in order to build a product or service which competes with the Software and the Services; (ii) make the Software and the Services available to any third party except to Authorised Users; or (iii) attempt to obtain, or assist third parties in obtaining, access to the Software and the Services, other than as provided under this clause 2.
2.6 Licensee shall: (i) keep a complete and accurate record of Licensee’s access to the Software and the Services, including specific Authorised Users, and produce such record to SLAMcore on request from time to time; and (ii) notify SLAMcore as soon as it becomes aware of any unauthorised use of the Software and the Services by any person. In respect of the Services, Licensee shall procure that each Authorised User shall keep secure the password and all other access credentials for access to the Services, and each Authorised User shall keep such access credentials confidential.
2.7 Licensee shall permit SLAMcore to inspect and have access to any premises (and to the computer equipment located there), and have access to any records kept in connection with this Agreement, for the purposes of ensuring that Licensee is complying with the terms and conditions of this Agreement, provided that SLAMcore provides reasonable advance notice to Licensee of such inspections, which shall take place at reasonable times.
2.8 Licensee shall cooperate fully with any reasonable instructions it is given by SLAMcore in relation to use of the Software and the Services by Licensee and its Authorised Users.
3. Licensee Data, Derived Data and Personal Data
3.1 Licensee shall own all right, title and interest in and to all of the Licensee Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data.
3.2 Licensee acknowledges that SLAMcore may use the Licensee Data to improve the performance and functionality of the Software and/or the Services or develop improvements, updates, upgrades, modifications and derivative works thereof and may derive Telemetry Data from Licensee’s use of the Software. SLAMcore shall own all rights, title and interest in and to all of the Derived Data.
3.3 Licensee acknowledges that SLAMcore may track and analyse Licensee’s and any Authorised User’s use of the Software and/or the Services for the purposes of security and for the improvement of the Software and/or the Services.
3.4 Both parties will comply with all applicable requirements of the Data Protection Legislation in respect of any Personal Data Processed pursuant to this Agreement. This clause 3 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. SLAMcore and Licensee agree that in respect of any Personal Data generated as a result of Licensee’s access to and use of the Software and the Services, Licensee shall be the Controller of such Personal Data and SLAMcore is a Processor of such Personal Data. Such Personal Data shall be Processed by SLAMcore in accordance with Schedule 1.
3.5 Licensee shall indemnify and hold harmless SLAMcore from and against all losses, damages, liabilities and claims, arising from or in relation to any third party claims that the Processing and use of the Licensee Data in accordance with this Agreement infringes or misappropriates any third party rights or breaches Data Protection Legislation.
4. SLAMcore’s Obligations
4.1 Where Licensee uses the Software under an Evaluation Licence, none of the obligations in this clause 4 shall apply.
4.2 SLAMcore shall:
4.2.1 provide the Software and the Services to Licensee on and subject to the terms and conditions of this Agreement;
4.2.2 use commercially reasonable endeavours to ensure that the Software and the Services conform materially to any relevant specification and all related Documentation;
4.2.3 on prior notice to Licensee, be entitled to make changes to the Software and the Services, provided such changes do not have a material adverse effect on Licensee’s business operations; and
4.2.4 promptly inform Licensee of any New Versions of the Software and shall offer to license such New Versions to Licensee on such terms and conditions as it sees fit; and
4.2.5 implement Maintenance Releases of the Software in its sole discretion, but shall be under no obligation to ensure any such Maintenance Release delivers an upgrade or improvement of the Software.
4.3 SLAMcore shall not be liable for any breach of its obligations in clause 4.2 or for any loss or damage incurred by Licensee, to the extent such loss or damage or any non-conformance with any applicable specification and/or Documentation is caused by: (i) Licensee’s use of the Software and the Services contrary to SLAMcore’s instructions; or (ii) modification or alteration of the Software and the Services by any party other than SLAMcore or SLAMcore’s duly authorised contractors or agents. If the Software or the Services do not conform materially with any applicable specification and/or Documentation, SLAMcore will, at its sole option, use commercially reasonable endeavours to correct any such non-conformance, or provide Licensee with an alternative means of accomplishing the desired performance, provided always that Licensee has paid and shall continue to pay all applicable Fees. Such correction or substitution constitutes Licensee’s sole and exclusive remedy for any non-conformance of the Software or the Services.
4.4 Licensee acknowledges that the Services will evolve over time and that functionality may be added and removed from time to time. SLAMcore does not warrant that Licensee’s use of the Services will be uninterrupted or error-free, or that the Services and/or the information obtained by Licensee through its use of the Services will meet Licensee’s requirements. SLAMcore is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Licensee acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.5 This Agreement shall not prevent SLAMcore from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
5. Licensee’s Obligations
5.1 Licensee shall provide SLAMcore with all necessary co-operation in relation to this Agreement and all necessary access to information as may be required by SLAMcore to fulfil its obligations under this Agreement, including without limitation, in relation to registration of a supported Sensor. For the avoidance of doubt, whether such Sensor is appropriate shall be determined by SLAMcore in its sole discretion and SLAMcore reserves the right to charge additional fees for such registration as notified by SLAMcore in writing to Licensee from time to time.
5.2 Licensee authorises SLAMcore to have full and unrestricted access to its computer infrastructure to the extent necessary to set up and configure the Software and the Services for Licensee, and to Licensee’s account through which Licensee and/or its Authorised Users access the Services in order to provide support or fix any errors in the Services. Licensee will be responsible for Authorised Users’ compliance with this Agreement including without limitation the restrictions set out in clause 2, and shall carry out all of its responsibilities in this Agreement in a timely and efficient manner.
5.3 Licensee shall ensure that its devices, networks and systems comply with the relevant specifications provided by SLAMcore from time to time necessary for the operation of the Software and the Services, and shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to SLAMcore’s data centres as may be necessary.
6. Fees and Payment
6.1 Licensee may be required to pay Fees in order to use the Software under an Evaluation Licence or to use the Software and the Services together (or any part thereof). If applicable, Fees shall be paid in accordance with the following payment obligations as set out in this clause 6.
6.2 SLAMcore shall invoice Licensee for the Fees in accordance with the intervals specified in the relevant payment schedule or in the Order, except if there are no such specific payment terms, then all applicable Fees shall be invoiced in advance and Licensee shall pay any invoice within thirty (30) days of the date of such invoice.
6.3 Fees for the Software and the Services may be collected via a payment processor as notified to Licensee from time to time. Licensee shall provide one or more authorised payment methods which Licensee authorises SLAMcore to charge in accordance with this clause 6. SLAMcore may suspend Licensee’s access to the Software and/or the Services if any payment is not successfully settled due to expiration, insufficient funds or otherwise. For some payment methods, the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the processing of the payment method, which shall be due and payable by Licensee. Licensee may be required to accept the terms and conditions of the issuer of the payment method or the third party payment processor to make the relevant payment as set out in the Order.
6.4 If SLAMcore has not received payment of the Fees by the due date, and without prejudice to any other rights and remedies of SLAMcore, SLAMcore may, without liability, disable Licensee’s account and all Authorised Users’ access to all or part of the Software and the Services until the invoice(s) concerned are paid in full. Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
6.5 Fees are payable in the currency identified in the Order, and are non-cancellable and non-refundable. SLAMcore shall be entitled to increase the Fees at the start of each Renewal Term upon prior written notice to Licensee.
6.6 All amounts payable under this Agreement shall be exclusive of VAT or relevant local sales tax (if any) which shall be paid at the rate and in the manner for the time being prescribed by applicable law. All amounts due under this Agreement shall be paid by Licensee in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law).
7. Intellectual Property Rights
7.1 As between the parties, all Intellectual Property Rights in and to the Software (including any Modifications), the Services and the Derived Data, shall belong to, and remain vested in SLAMcore at all times.
7.2 Without prejudice to clause 7.1 or to the provisions of clause 2 above, to the extent that Licensee’s, or any Authorised User’s use of the Software and the Services results in Improvements, whether through Licensee’s feedback or by any other means, then notwithstanding any rights or remedies of SLAMcore under clause 2 above, any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by SLAMcore. Any Improvement shall be free from any confidentiality restrictions that might otherwise be imposed upon SLAMcore pursuant to clause 11 of this Agreement. Licensee shall not, at any time, apply for any copyright, trademark, patent, or any other Intellectual Property Right protection for anything owned by or proprietary to Licensee that uses or incorporates the Software and/or the Services (including any Improvements or Modifications), or file any document with any governmental agency that would affect SLAMcore’s rights in or ownership of the Software and/or the Services (including any Improvements or Modifications), or aid or abet anyone else in doing so.
7.3 SLAMcore makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software and the Services. All rights not expressly set forth hereunder are reserved by SLAMcore.
7.4 Subject to clause 9.4, SLAMcore shall defend Licensee against any third party claims that the use of the Software and/or the Services in accordance with this Agreement infringes any third party Intellectual Property Right in the United Kingdom and shall indemnify Licensee for and against any amounts awarded against Licensee in judgment or settlement of such claims, provided that: (i) SLAMcore is given prompt notice of such claim; (ii) Licensee provides reasonable co-operation to SLAMcore in the defence and settlement of such claim, at Licensee’s expense; (iii) SLAMcore is given sole authority to defend or settle the claim; and (iv) Licensee makes no admission of liability or fault itself or on behalf of SLAMcore.
Where Licensee uses the Software under an Evaluation Licence, the indemnity in clause 7.4 shall not apply.
7.5 In the defence or settlement of any claim pursuant to clause 7.4, SLAMcore may at its sole option and expense either:
7.5.1 procure for Licensee the right to continue using the Software or the Services in the manner contemplated by this Agreement;
7.5.2 replace or modify the Software or Services as applicable so that it becomes non-infringing; or
7.5.3 terminate this Agreement forthwith by notice in writing and without liability to Licensee.
7.6 SLAMcore shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 7.4) if the infringement or alleged infringement is based on: (i) modification of the Software or the Services by anyone other than SLAMcore; or (ii) Licensee’s or any Authorised User’s use of the Software or the Services otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to Licensee by SLAMcore in connection therewith; or (iii) Licensee’s or any Authorised User’s use of the Software or the Services after notice of the alleged or actual infringement from SLAMcore or any appropriate authority; or (iv) use or combination of the Software or Services with any other software or hardware, in circumstances where, but for such combination, no infringement or allegation of infringement would have occurred.
7.7 Licensee hereby indemnifies SLAMcore against all or any costs, claims, damages or expenses incurred by SLAMcore in respect of any third party claims relating to Licensee’s or any Authorised User’s use of the Software and the Services otherwise than in accordance with this Agreement.
8. Exclusion of Warranties
8.1 The Software and the Services are provided to Licensee “as is”, and any use by Licensee of the Software and the Services during the Term will be at Licensee’s sole risk. SLAMcore makes no warranties relating to the Software and the Services and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, or fitness for a particular purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
9. Limitation of Liability
9.1 This clause 9 sets out the entire financial liability of SLAMcore to Licensee arising under or in connection with this Agreement, in respect of any use made by Licensee or its Authorised Users of the Software and the Services and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2 Except as expressly and specifically provided in this Agreement, Licensee assumes sole responsibility for any results obtained by Authorised Users from the use of the Software and the Services, and for any conclusions drawn from such use. SLAMcore shall have no liability for any damage caused by errors or omissions in any information or data provided to it by Licensee, or for any actions taken by SLAMcore at Licensee’s (or its Authorised Users’) direction.
9.3 Nothing in this Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
9.4 Subject to clause 9.3, SLAMcore shall not be liable for any consequential, indirect, special, incidental, punitive or exemplary losses or damages, whether foreseeable or unforeseeable, including any loss of profit, loss of business, loss of goodwill, loss of or corruption of data, loss caused or contributed to by any employee, agent, contractor or representative of Licensee, loss caused as a result of the Services being unavailable as a result of planned downtime as notified to Licensee, loss arising from any failure of Licensee’s infrastructure and/or utilities, loss caused as a result of the Services being unavailable in accordance with clause 13.2, loss caused by the failure or delay of any third party application or service or network, however arising under this Agreement. SLAMcore’s entire, aggregate liability in contract, tort (including negligence or breach of statutory duty) arising out of or relating to this Agreement shall be limited to the greater of the total Fees paid by Licensee during the twelve (12) months immediately preceding the date on which the claim arose, or one hundred pounds £100.
9.5 Licensee acknowledges that the Services may integrate or interoperate with third party applications and that the Software once downloaded may be installed by Licensee in or on third party products. SLAMcore shall not be liable for and takes no responsibility for any third party products and/or software applications, including those provided by a third party hardware and/or software provider (“Third Party Products”). Any use of such Third Party Products will be subject to the relevant third party’s standard terms and conditions (“Third Party Terms”). Licensee shall indemnify, defend and hold harmless SLAMcore against all claims, costs, damages, expenses (including attorneys’ fees), liabilities and losses related to claims made by any third party arising out of or in connection with Licensee’s breach of any Third Party Terms.
10. Term and Termination
10.1 This Agreement is effective from the Effective Date for the duration of the Term, unless terminated earlier in accordance with this clause 10. This Agreement will terminate automatically if Licensee fails to comply with any of the limitations or other requirements described herein.
10.2 Notwithstanding the foregoing, without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
10.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) business days after being notified in writing to make such payment;
10.2.2 if the other party commits a material breach of any term of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within thirty (30) days after being notified in writing to do so; or
10.2.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business.
10.3 SLAMcore may terminate this Agreement at any time in whole or in part: (i) immediately in respect of the use of the Software under an Evaluation Licence; or (ii) by giving thirty (30) days’ written notice to Licensee.
10.4 At the end of the Term or upon the request of SLAMcore, whichever is earlier, Licensee will cease to access the Software and the Services, and make no further use whatsoever of the Software and the Services. Licensee will promptly return to SLAMcore or at SLAMcore’s request permanently erase or destroy from all of Licensee’s devices and systems: (i) the Software and the Services (including all material copies of the Software and any related Documentation), and shall ensure that any copies of the Software on hard discs or other storage means associated with any computer equipment owned or controlled by Licensee are permanently deleted; and (ii) any of SLAMcore’s Confidential Information.
11. Confidential Information
11.1 Each party may have access to Confidential Information of the other party under this Agreement. A party’s Confidential Information shall not include information that: (i) is or becomes publicly known through no act or omission of the receiving party; or (ii) was in the other party’s lawful possession prior to the disclosure; or (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other party’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 This clause 11 shall survive termination of this Agreement for any reason.
12. Compliance with Laws and Regulations
12.1 Licensee shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
13.1 This Agreement does not create any agency, partnership or joint venture relationship.
13.2 Neither party is responsible for failure to fulfil its obligations herein, except for any payment obligations, due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance herein, if such delay or failure results from events, beyond its reasonable control, including, without limitation, strikes, acts of God, epidemics, pandemics or other outbreak of infectious disease or other public health crisis (and any government response to them, including quarantine or other employee restrictions), war, terrorism, riot, denial of service attacks, or compliance with any law or governmental order (“Force Majeure Event”). Dates or times by which each party is required to render performance under this Agreement shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes. If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than thirty (30) days, either party may terminate this Agreement by giving thirty (30) days’ written notice to the other party.
13.3 All communications relating to this Agreement shall be in writing and delivered by recorded delivery only to the party concerned at the relevant address shown at the top of this Agreement (or such other address as may be notified from time to time in accordance with this clause 13.3). Any such communication shall take effect at 9.00 am on the second business day after posting or if by email, 24 hours after transmission, in the absence of a failed delivery receipt.
13.4 SLAMcore may, but Licensee may not without SLAMcore’s prior written consent, assign, novate, subcontract or otherwise transfer any of its rights or obligations under this Agreement.
13.5 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.6 This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute a single instrument.
13.7 We reserve the right to change this Agreement from time to time. Changes to this Agreement will be notified to Licensee prior to a renewal of its subscription or any Renewal Term, and shall come into effect automatically for any such subscription renewal or Renewal Term. On the renewal of Licensee’s subscription or commencement of any Renewal Term, Licensee will be deemed to have accepted all new terms of the Agreement.
13.8 No failure or delay by either party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver, prevent or restrict the future exercise, of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.9 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
13.10 No one other than a party to this Agreement shall have any right to enforce any of its terms.
13.11 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
DATA PROCESSING SCHEDULE
- Interpretation. Capitalised terms used in this Schedule and not otherwise defined in the Agreement shall bear the meaning given to them in the Data Protection Legislation.
- Data Processing Obligations. The parties acknowledge and agree that for the purposes of the Data Protection Legislation, in respect of any Personal Data generated as a result of Licensee’s access and use of the Software and the Services, Licensee is the Data Controller and SLAMcore is the Data Processor of such Personal Data and the Processing activities undertaken by SLAMcore are set out in Annex A.
- SLAMcore’s Processing obligations
3.1. To the extent that SLAMcore Processes any Personal Data on behalf of Licensee in connection with Licensee’s use of the Software and the Services, SLAMcore shall:
3.1.1. only Process such Personal Data in accordance with the purposes set out in the Agreement and notify Licensee immediately if in its opinion Licensee’s instructions infringe applicable law;
3.1.2. maintain a record of its Processing activities under the Agreement in accordance with and to the extent required by Article 30(2) GDPR, and SLAMcore shall at any time upon request, deliver up to Licensee details of such Processing activities;
3.1.3. ensure that access to any such Personal Data is restricted to those of its personnel who need to have access in order to make the Software and the Services available in accordance with the Agreement and who are subject to confidentiality obligations in respect of the Personal Data;
3.1.4. notify Licensee without undue delay if it suffers a Personal Data Breach, if it receives any Data Subject Request relating to the Personal Data, and shall: (i) not respond to the Data Subject Request without Licensee’s prior written consent and in accordance with Licensee’s instructions; and (ii) shall provide such assistance as Licensee may reasonably require in respect of such Personal Data in order for Licensee to comply and respond to the Data Subject Request in accordance with the Data Protection Legislation;
3.1.5. provide reasonable assistance to Licensee in inputting into and carrying out data protection impact assessments and, to the extent required under the Data Protection Legislation, prior notification under Article 36 of GDPR; and
3.1.6. ensure that it has implemented appropriate organisational and technical measures in order to comply with its obligations under this paragraph 3.
3.2. To the extent legally permitted, Licensee shall be responsible for any costs arising from SLAMcore’s provision of assistance beyond the existing functionality of the Software and the Services.
3.3. SLAMcore is permitted to engage a sub-processor to Process any of the Personal Data on Licensee’s behalf in connection with Licensee’s use of the Software and the Services. Licensee pre-approves SLAMcore’s use of third party processors for the purposes of fulfilling its obligations. SLAMcore shall:
3.3.1. inform Licensee prior to the appointment or removal of any such sub-processor, thereby giving Licensee an opportunity to object to the appointment or removal. If Licensee objects on reasonable grounds, SLAMcore shall either: (i) alter its plans to use the sub-processor with respect to Personal Data; or (ii) take corrective steps to remove Licensee’s objections. If none of the above options are reasonably available or the issue is not resolved within thirty (30) days of the objection, either party may terminate the Agreement;
3.3.2. ensure that such sub-processor is subject to a written agreement which imposes on it binding contractual obligations which are equivalent to the terms imposed on SLAMcore under this Schedule to the extent required by Data Protection Legislation; and
3.3.3. ensure that the sub-processor’s Processing of such Personal Data terminates upon termination of SLAMcore’s right to Process the data, provided that SLAMcore shall be liable for the acts and omissions of such sub-processors in relation to the Processing of such Personal Data.
3.4. Licensee acknowledges that SLAMcore and its sub-processors may Process Personal Data in non-EEA countries. SLAMcore will abide by the requirements of the Data Protection Legislation regarding the transfer and Processing of Personal Data from the EEA. SLAMcore will ensure that transfers of Personal Data to a third country that does not ensure an adequate level of protection or an international organization are subject to appropriate safeguards as described in Article 46 of the GDPR or where required enter into the EU-controller to Non-EU/EEA processor model contractual clauses annexed to European Commission Decision C(2010) 593 (“Standard Contractual Clauses”), incorporating the details from Annex A as applicable.
3.5. Upon termination or expiry of this Agreement, SLAMcore shall cease all Processing of any Personal Data Processed on Licensee’s behalf under this Agreement and shall return or destroy all such Personal Data.
3.6. In order to demonstrate SLAMcore’s compliance with the Data Protection Legislation and the terms of this Schedule, SLAMcore shall:
3.6.1. provide Licensee with such information as Licensee reasonably requests from time to time to enable Licensee to satisfy itself that SLAMcore is complying with its obligations under this Schedule and the Data Protection Legislation; and
3.6.2. allow Licensee, at Licensee’s sole cost and expense access (on reasonable notice and no more than once a year) to its premises where Personal Data is Processed under the Agreement to allow Licensee to audit its compliance with this Schedule and the Data Protection Legislation and shall provide reasonable co-operation as requested by Licensee in the performance of such audit. The parties shall agree in advance on the reasonable start date, duration and security and confidentiality controls applicable to such audit.
- Obligations of Licensee
4.1. Licensee shall:
4.1.1. have at all times during the Term of the Agreement appropriate technical and organisational measures to ensure a level of security appropriate to the risk to protect any Personal Data;
4.1.2. provide clear and comprehensible written instructions to SLAMcore for the Processing of Personal Data to be carried out under the Agreement; and
4.1.3. ensure that it has all the necessary licences, permissions, consents and notices in place to enable lawful transfer of Personal Data to SLAMcore for the duration and purposes of the Agreement.
- Nature and Purpose of Processing. SLAMcore will Process Personal Data as necessary to perform its obligations pursuant to the Agreement.
- Duration of Procession. SLAMcore will Process Personal Data for the Term of the Agreement.
- Categories of Data Subjects. Licensee may submit Personal Data to the Software and/or the Services, the extent of which is determined and controlled by Licensee in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects: (i) Data Subjects contained in any imagery or footage recorded via the Software and/or uploaded to the Services; and (ii) Data Subjects signed up to use the Software and/or Services through an account.
- Type of Personal Data. Licensee may submit Personal Data to the Software and/or the Services, the extent of which is determined and controlled by Licensee in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: (i) imagery and footage related to Data Subjects; and (ii) names, email addresses, dates of birth, addresses and other ancillary contact details of Data Subjects.