END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT
WE HAVE UPDATED OUR END USER LICENSE AGREEMENT. IF YOU ARE A NEW END USER, THEN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) WILL BE EFFECTIVE AS OF THE EFFECTIVE DATE (AS DEFINED IN THIS AGREEMENT). IF YOU ARE AN EXISTING END USER, WE ARE PROVIDING YOU WITH PRIOR NOTICE OF THESE CHANGES WHICH WILL BE EFFECTIVE AS OF FEBRUARY 18, 2022 SUBJECT TO SECTION 14.9 OF THIS AGREEMENT
PLEASE READ CAREFULLY BEFORE YOU SUBMIT AN ORDER FORM, DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO SERVICES INCLUDING, FOR THE AVOIDANCE OF ANY DOUBT, THE SOFTWARE, THE ABAGY SOLUTION AND THE ABAGY OFFLINE SOLUTION (AS SUCH TERMS ARE DEFINED HEREIN).
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“YOU” OR “END USER”) AND ABAGY LIMITED, A LIMITED COMPANY INCORPORATED AND REGISTERED IN CYPRUS WITH COMPANY NUMBER 401087 WHOSE REGISTERED OFFICE IS AT 6 VASILI VRYONIDI STR., GALA COURT CHAMBERS, 5TH FLOOR, OFFICE 503, 3095, LIMASSOL, CYPRUS (THE “SUPPLIER”).
IF YOU SUBMIT AN ORDER FORM OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SERVICES OR THE SOFTWARE, YOU ARE DEEMED TO HAVE AGREED TO BE BOUND UNCONDITIONALLY BY THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED IN THE ORDER FORM THAT YOU HAVE SUBMITTED.
IF YOU DO NOT ACCEPT OR DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM OR REQUEST AN ORDER FORM BE SUBMITTED ON YOUR BEHALF OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SOFTWARE AND/OR THE SERVICES. IF YOU HAVE DONE SO BY MISTAKE, PLEASE INFORM THE SUPPLIER IMMEDIATELY TO DISCUSS NEXT STEPS AND REQUEST A REFUND.
ANY AMENDMENTS TO THIS AGREEMENT ARE AT THE DISCRETION OF THE SUPPLIER.
YOU HEREBY AUTHORISE THE SUPPLIER AND ITS AFFILIATES TO USE, STORE AND PROCESS CERTAIN PERSONAL DATA IN ACCORDANCE WITH ITS PRIVACY POLICY AVAILABLE AT HTTPS://ABAGY.COM/PRIVACY-POLICY AND TO PROVIDE SUCH PERSONAL DATA TO ITS CONTRACTORS, BUSINESS PARTNERS, ASSIGNEES AND AFFILIATES FOR USES CONSISTENT WITH THEIR COLLECTIVE BUSINESS ACTIVITIES IN CONNECTION WITH THE BUSINESS RELATIONSHIP, INCLUDING COMMUNICATING WITH THEM, INCLUDING FOR PROCESSING ORDERS, PROMOTIONS AND MARKET RESEARCH. YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL CONSENTS NECESSARY FOR THE SUPPLIER AND ITS AFFILIATES TO STORE, PROCESS AND USE SUCH PERSONAL DATA.
IMPORTANT:
PLEASE READ CAREFULLY BEFORE YOU SUBMIT AN ORDER FORM, DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO SERVICES INCLUDING, FOR THE AVOIDANCE OF ANY DOUBT, THE SOFTWARE, THE ABAGY SOLUTION AND THE ABAGY OFFLINE SOLUTION (AS SUCH TERMS ARE DEFINED HEREIN).
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“YOU” OR “END USER”) AND ABAGY LIMITED, A LIMITED COMPANY INCORPORATED AND REGISTERED IN CYPRUS WITH COMPANY NUMBER 401087 WHOSE REGISTERED OFFICE IS AT 6 VASILI VRYONIDI STR., GALA COURT CHAMBERS, 5TH FLOOR, OFFICE 503, 3095, LIMASSOL, CYPRUS (THE “SUPPLIER”).
IF YOU SUBMIT AN ORDER FORM OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SERVICES OR THE SOFTWARE, YOU ARE DEEMED TO HAVE AGREED TO BE BOUND UNCONDITIONALLY BY THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED IN THE ORDER FORM THAT YOU HAVE SUBMITTED.
IF YOU DO NOT ACCEPT OR DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM OR REQUEST AN ORDER FORM BE SUBMITTED ON YOUR BEHALF OR DOWNLOAD, INSTALL, ACCESS, LOGIN, USE OR SUBSCRIBE TO THE SOFTWARE AND/OR THE SERVICES. IF YOU HAVE DONE SO BY MISTAKE, PLEASE INFORM THE SUPPLIER IMMEDIATELY TO DISCUSS NEXT STEPS AND REQUEST A REFUND.
ANY AMENDMENTS TO THIS AGREEMENT ARE AT THE DISCRETION OF THE SUPPLIER.
YOU HEREBY AUTHORISE THE SUPPLIER AND ITS AFFILIATES TO USE, STORE AND PROCESS CERTAIN PERSONAL DATA IN ACCORDANCE WITH ITS PRIVACY POLICY AVAILABLE AT HTTPS://ABAGY.COM/PRIVACY-POLICY AND TO PROVIDE SUCH PERSONAL DATA TO ITS CONTRACTORS, BUSINESS PARTNERS, ASSIGNEES AND AFFILIATES FOR USES CONSISTENT WITH THEIR COLLECTIVE BUSINESS ACTIVITIES IN CONNECTION WITH THE BUSINESS RELATIONSHIP, INCLUDING COMMUNICATING WITH THEM, INCLUDING FOR PROCESSING ORDERS, PROMOTIONS AND MARKET RESEARCH. YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL CONSENTS NECESSARY FOR THE SUPPLIER AND ITS AFFILIATES TO STORE, PROCESS AND USE SUCH PERSONAL DATA.
1. DEFINITIONS
1.1 In this Agreement (including the Recitals and the Schedules), the following definitions shall apply:
1.1 In this Agreement (including the Recitals and the Schedules), the following definitions shall apply:
“Abagy Offline Solution”
means a control programme generated by the Software which is downloadable offline for purposes of executing production tasks by Robotic Cells, as may be more fully described in to this Agreement and as may be modified or updated by the Supplier from time to time.
“Abagy Solution”
means a stand-alone software-as-a-service solution provided to End Users on a subscription basis for the purposes of analysing computer-assisted design models and defining technological parameters and managing Robotic Cells, while executing production tasks, as may be more fully described in to this Agreement and as may be modified or updated by the Supplier from time to time.
“Activation Date”
means the date on which the activation process as set out in Part A or Part B of to this Agreement has been completed, the Subscription is activated and the Subscription Period commences.
“Activation Request”
means a request to activate the Subscription by an End User submitted to the Supplier via its Personal Account and/or by sending a free-form request to activate the Subscription using the email address of the Supplier specified in this Agreement.
“Adaptive Programme”
means one adaptive robot control programme for execution of one specific production task for one specific product according to a 3D model uploaded by the End User to its Personal Account, as may be more fully described in to the this Agreement and as may be modified or updated by the Supplier from time to time.
“Additional Programme”
means an additional Adaptive Programme, as may be more fully described in to the this Agreement and as may be modified or updated by the Supplier from time to time, available to the End User upon completing the relevant Order Form and making a payment to the Supplier as set out in such Order Form and the relevant invoice.
“Affiliate”
means any person that directly or indirectly Controls, is Controlled by or is under common Control with another person, in each case from time to time.
“Business Day”
means any day on which banks are open for business in Cyprus (excluding Saturdays, Sundays or public holidays).
“Change Request”
means any additional products or services that an End User may wish to order from the Supplier, including any Additional Programmes, enhancements or other changes to the Services specified in the original Order Form.
“Confirmation Request Form”
means a confirmation request form substantially in the form set out in to this Agreement completed by the End User and/or the Reseller, as applicable, and submitted to the Supplier.
“Control”
means, in relation to a person, the power of a person (or persons acting together) to secure, whether by contract, voting rights or otherwise, and whether directly or indirectly (including, without limitation, via one or more intermediate undertakings) that the affairs of such person are conducted in accordance with the wishes of that person (or persons); and a “Change of Control” occurs if a person who Controls any body corporate ceases to do so or if another person acquires Control of it.
“Controller”, “personal data”, “personal data breach” and “processing”
have meanings assigned to such terms in the Data Protection Legislation.
“Data Protection Legislation”
means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data.
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data.
“Data”
means any and all information, knowledge and data relating to the use, testing and assessment of the Services by the End User.
“Derivative Work”
means a work that is based on one or more pre-existing works (such as a revision, translation, enhancement, modification, or any other form in which pre-existing work may be recast, transformed or adapted) which, if created without the authorisation of the Supplier would constitute copyright infringement.
“Documentation”
means any manuals, how-to guides, help files and other documentation in the English language describing the operation and use of the Services and relevant Technical Requirements developed and updated by Supplier from time to time and made available to the End User via, where applicable, the Personal Account, the Supplier’s website www.abagy.com or other means of notice set out in this Agreement.
“Effective Date”
means the date on which the Order Form has been approved by the Supplier.
“EU GDPR”
means the General Data Protection Regulation ((EU) 2016/679).
“Fee Schedule”
means a schedule of Fees set out in to this Agreement, as may be modified or updated by the Supplier from time to time.
“Fee”
means a fee payable by the End User to the Supplier, including any Initial Subscription Fees and Renewal Subscription Fees, in respect of the Services as specified in the relevant Order Form.
“Governmental Authority”
means any supranational, national, state, municipal or local government in any relevant jurisdiction.
“Heightened Cybersecurity Requirements”
means any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the End User or its end users (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
“Industrial Robot Controller”
means a control system or device that forms part of a Robotic Cell and enables the programming thereof and complies with the Technical Requirements as more fully described in to this Agreement, as may be modified or updated by the Supplier from time to time.
“Initial Subscription Fee”
means a fee payable by the End User to the Supplier in respect of the Subscription as set out in the Order Form in accordance with this Agreement.
“Initial Subscription Period”
means a fixed period of time commencing on the Activation Date and ending on the date set out in the relevant Order Form during which the End User has access to the Services; provided however that the duration of any Initial Subscription Period shall be the minimum of 12 (twelve) calendar months from the Activation Date.
“Intellectual Property Rights”
means any and all rights (by whatever name or term known or designated), associated with the Services, including the Software, Abagy Solution, Abagy Offline Solution or Documentation that are owned by or licensed to the Supplier, including but not limited to:
(a) rights associated with works of authorship throughout the world, including but not limited to copyrights and moral rights;
(b) trademarks, service marks, trade name rights, domain names, packaging, and similar rights;
(c) trade secret rights;
(d) patents (renewals, extensions, reissues, and re-examinations thereof), design rights, and other industrial property rights;
(e) all registrations, patent applications (including continuations, continuations-in-part, and divisions thereof) now or hereafter in force;
(f) all other intellectual and industrial property rights (of every kind and nature and however designated), including logos, “rental” rights, and rights to remuneration, whether arising by operation of law, contract, license, or otherwise; and
(g) any additional applicable intangible property (whether or not in documentary form and whether or not patentable, copyrightable, or otherwise protectable under applicable laws), which pertains to the Abagy Solution, Abagy Offline Solution, Software or Documentation.
(a) rights associated with works of authorship throughout the world, including but not limited to copyrights and moral rights;
(b) trademarks, service marks, trade name rights, domain names, packaging, and similar rights;
(c) trade secret rights;
(d) patents (renewals, extensions, reissues, and re-examinations thereof), design rights, and other industrial property rights;
(e) all registrations, patent applications (including continuations, continuations-in-part, and divisions thereof) now or hereafter in force;
(f) all other intellectual and industrial property rights (of every kind and nature and however designated), including logos, “rental” rights, and rights to remuneration, whether arising by operation of law, contract, license, or otherwise; and
(g) any additional applicable intangible property (whether or not in documentary form and whether or not patentable, copyrightable, or otherwise protectable under applicable laws), which pertains to the Abagy Solution, Abagy Offline Solution, Software or Documentation.
“License ID”
means a unique identification number provided by the Supplier to the End User for purposes of accessing the Personal Account.
“License”
has the meaning assigned to such term in Clause 2.1.
“Maintenance Release”
means any release of the Software that corrects faults, adds functionality or otherwise amends, updates or, upgrades the Software, but which does not constitute a New Version.
“New Version”
means any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business and which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“Open Source Software”
means any software programme which are licensed under any form of open-source license, meeting the Open Source Initiative's open source definition from time to time.
“Order Form”
means an order form substantially in the form set out in to the Agreement completed in accordance with this Agreement.
“Permitted Purposes”
has the meaning assigned to such term in Clause 2.1.
“Permitted Recipients”
means the employees, managers, officers, directors, partners, consultants, independent contractors, licensees, successors, assigns and agents of either Party authorised to represent either Party in the performance of its obligations under this Agreement.
“Renewal Subscription Fee”
means a fee payable by the End User to the Supplier in respect of the Subscription as set out in the Order Form in accordance with this Agreement.
“Renewal Subscription Period”
means a fixed period of time commencing on the following the completion of the Initial Subscription Period or, where applicable, the Renewal Subscription Period, and ending as set out in this Agreement during which the End User has access to the Services; provided however that the duration of any Renewal Subscription Period shall be the minimum of 12 (twelve) calendar months from the Activation Date.
“Responsible Officer”
means an individual appointed by the End User for purposes of installing the Software and setting up the End User’s access to the Services whose name and contact details are set out in the relevant Order Form.
“Robotic Cell” or “RC”
means a set of equipment designed to fulfil certain production tasks identified by the End User, including industrial manipulators and technical vision equipment, that complies with the Technical Requirements set out in to this Agreement, as may be modified or updated by the Supplier from time to time.
“Services”
means the Software, Updates, Support Services and any other products or services provided by the Supplier under this Agreement.
“Shared Personal Data”
means the personal data to be shared between the Parties under this Agreement.
“Site”
means the premises from which the End User carries out its business as notified to the Supplier in writing from time to time.
“Software”
means the computer software designed to operate Robotic Cells and consisting of mathematical codes, programmes, routines and other functions that control the functioning and operation of computer hardware, including the Abagy Solution and the Abagy Offline Solution, as may be more fully described in to this Agreement and as may be modified or updated by the Supplier from time to time.
“Specific Type Programme” or “Programme”
means a robot control programme or an archive of one or more files of a type specified in the Order Form used for execution of a specific production task for a specific product or performing the task of processing on a Robotic Cell of a specific product according to its 3D model, as may be more fully described in to this Agreement and as may be modified or updated by the Supplier from time to time.
“Subscription Fee”
means either the Initial Subscription Fee or the Renewal Subscription Fee, or a combination thereof, payable by the End User to the Supplier in respect of the Subscription by way of making an Initial Payment, any Regular Payments or an Upfront Payment, or a combination thereof, as applicable, in accordance with this Agreement and the Order Form.
“Subscription Period”
means the fixed period of time during which an End User has access to the Services as set out in the relevant Order Form which may be either:
(a) the Initial Subscription Period only;
(b) one Renewal Subscription Period following the expiry of the Initial Subscription Period; or
(c) the Initial Subscription Period and subsequent multiple Renewal Periods for an unlimited number of consecutive Renewal Periods,
unless the Supplier agrees otherwise as part of the Order Form approval process.
(a) the Initial Subscription Period only;
(b) one Renewal Subscription Period following the expiry of the Initial Subscription Period; or
(c) the Initial Subscription Period and subsequent multiple Renewal Periods for an unlimited number of consecutive Renewal Periods,
unless the Supplier agrees otherwise as part of the Order Form approval process.
“Subscription”
means the license to access the Services, including the license to use the Software, granted by the Supplier to an End User in relation to one relevant Robotic Cell for a term specified in the Order Form or any subsequent Order Forms in accordance with this Agreement.
“Support Services”
means support and maintenance services to be provided by the Supplier to the End User in connection with the Services and in accordance with this Agreement.
“Technical Requirements”
means the technical criteria required to be met by the End User’s Robotic Cell in accordance with this Agreement, set out in to this Agreement, and as may be modified or updated by the Supplier from time to time.
“Territory”
means the countries that are part of the European Union on the Effective Date.
“third party”
means and includes any individual, corporation, trust, estate, partnership, joint venture, company, association, league, governmental bureau or agency, or any other entity regardless of the type or nature, which is not a Party or an Affiliate thereof.
“UK GDPR”
has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“Update”
mean any periodic Services, including any Maintenance Releases, if any, that the Supplier may provide from time to time at its sole discretion, for purposes of: (i) providing minor enhancements and/or improvements, patches, fixes, or the like to the Services, including the Software; or (ii) resolving any technological issues related to the End User’s then-current version of the Software, included in the Subscription.
“VAT”
means value added tax or any equivalent tax chargeable in Cyprus or elsewhere.
1.2 In this Agreement (including the Recitals and the Schedules), except where the context otherwise requires:
(a) a reference to this “Agreement” (or to any specified provision of this Agreement) is to this Agreement (or provision) as in force for the time being, as amended, modified, supplemented, varied, assigned or novated, from time to time, and includes the Schedules to it, each of which forms part of this Agreement for all purposes;
(b) a reference to “Clauses”, “Schedules” and the “Recitals” is to Clauses and the Recitals of, and the Schedules to, this Agreement;
(c) a reference to a “person” shall be construed so as to include any individual, firm, body corporate, joint venture, unincorporated association, partnership, trust, government, governmental body, authority or agency (whether or not having separate legal personality), and a reference to a person includes a reference to that person’s successors and assigns;
(d) a reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;
(e) a reference to a “Party” means a party to this Agreement and shall include any permitted assignee or successor to such party in accordance with this Agreement;
(f) a reference to any “law” or “enactment” includes references to: (i) that law or enactment as re-enacted, amended, extended or applied by or under any other enactment (before or after signature of this Agreement); (ii) any law or enactment which that law or enactment re-enacts (with or without modification); and (iii) any subordinate legislation made (before or after signature of this Agreement) under any law or enactment, as re-enacted, amended, extended or applied;
(g) a reference to “writing” shall include any mode of reproducing words in a legible and non-transitory form;
(h) a reference to “costs” and/or “expenses” incurred by a person shall not include any amount in respect of VAT comprised in such costs or expenses for which that person is entitled to credit or repayment as VAT input tax under any applicable provisions;
(i) a reference to “indemnifying” any person against any circumstance includes indemnifying and keeping that person harmless from all actions, claims and proceedings from time to time made against that person and all loss or damage and all payments, costs or expenses made or incurred by that person as a consequence of or which would not have arisen but for that circumstance; and
(j) any reference in this Agreement to a Party providing its “consent” shall be deemed to be a reference to prior written consent, unless specifically stated otherwise.
1.3 Words importing the singular shall include the plural and vice versa, and words importing a gender shall include every gender.
1.4 Headings are for ease of reference only and shall not be taken into consideration in the interpretation of this Agreement.
1.5 If a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day.
(a) a reference to this “Agreement” (or to any specified provision of this Agreement) is to this Agreement (or provision) as in force for the time being, as amended, modified, supplemented, varied, assigned or novated, from time to time, and includes the Schedules to it, each of which forms part of this Agreement for all purposes;
(b) a reference to “Clauses”, “Schedules” and the “Recitals” is to Clauses and the Recitals of, and the Schedules to, this Agreement;
(c) a reference to a “person” shall be construed so as to include any individual, firm, body corporate, joint venture, unincorporated association, partnership, trust, government, governmental body, authority or agency (whether or not having separate legal personality), and a reference to a person includes a reference to that person’s successors and assigns;
(d) a reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;
(e) a reference to a “Party” means a party to this Agreement and shall include any permitted assignee or successor to such party in accordance with this Agreement;
(f) a reference to any “law” or “enactment” includes references to: (i) that law or enactment as re-enacted, amended, extended or applied by or under any other enactment (before or after signature of this Agreement); (ii) any law or enactment which that law or enactment re-enacts (with or without modification); and (iii) any subordinate legislation made (before or after signature of this Agreement) under any law or enactment, as re-enacted, amended, extended or applied;
(g) a reference to “writing” shall include any mode of reproducing words in a legible and non-transitory form;
(h) a reference to “costs” and/or “expenses” incurred by a person shall not include any amount in respect of VAT comprised in such costs or expenses for which that person is entitled to credit or repayment as VAT input tax under any applicable provisions;
(i) a reference to “indemnifying” any person against any circumstance includes indemnifying and keeping that person harmless from all actions, claims and proceedings from time to time made against that person and all loss or damage and all payments, costs or expenses made or incurred by that person as a consequence of or which would not have arisen but for that circumstance; and
(j) any reference in this Agreement to a Party providing its “consent” shall be deemed to be a reference to prior written consent, unless specifically stated otherwise.
1.3 Words importing the singular shall include the plural and vice versa, and words importing a gender shall include every gender.
1.4 Headings are for ease of reference only and shall not be taken into consideration in the interpretation of this Agreement.
1.5 If a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day.
2. LICENSE GRANT
2.1 The Supplier grants to the End User a non-exclusive, non-transferable, non-sublicensable, revocable, limited subscription-based license for the Subscription Period, to access the Services and to use the Software for the End User’s business purposes and other purposes set out in this Agreement within the Territory (“Permitted Purposes”), including any Updates, that may be provided to the End Users by the Supplier from time to time, as and when available (“License”), but excluding any new Software features or substantial additional functionality for which the Supplier, in its sole discretion, generally may charge licensees additional charges.
2.2 In relation to the scope of use, use of the Software shall be restricted to use of the Software in object code form only and as set out in the Order Form for the purpose of processing the End User's data for the normal business purposes of the End User (which shall not include allowing the use of the Software by, or for the benefit of, any person other than any employee of the End User).
2.3 The End User may not use the Services, Software, Abagy Solution or Abagy Offline Solution other than as specified in Clause 2.1 and Clause 2.2 without the prior written consent of the Supplier, and the End User acknowledges that additional fees may be payable on any change of use approved by the Supplier.
2.4 The End User may not use any such information provided by the Supplier or obtained by the End User to create any software whose expression is substantially similar to that of the Services, Software, Abagy Solution or Abagy Offline Solution nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The End User shall not, and shall not permit any third party to:
(a) rent, transfer, lease, sub-license, assign or novate the benefit or burden of or otherwise distribute for re-sale the Licence, the Services, Software, Abagy Solution or Abagy Offline Solution, in whole or in part;
(b) obtain access to the Services, Software, Abagy Solution or Abagy Offline Solution;
(c) copy, adapt, disassemble, reverse engineer, create derivative works of, make error corrections to or decompile the Services, Software, Abagy Solution and Abagy Offline Solution, source code, structure, algorithms or ideas underlying them;
(d) modify the Services, Software, Abagy Solution and Abagy Offline Solution;
(e) allow the Services, including the Software, Abagy Solution and Abagy Offline Solution to become the subject of any charge, lien or encumbrance;
(f) deal in any other manner with any or all of its rights and obligations under this Agreement; and/or
(g) authorise, permit, aid or abet, assist or otherwise allow or purport to allow any third party to do any of the acts set out in this Clause 2.5.
2.6 The Supplier reserves all rights not expressly granted herein.
2.7 The End User confirms that it is acting on its own behalf and not for the benefit of any other person.
2.8 The End User shall:
(a) ensure that the Software is installed and maintained on designated equipment only in accordance with the Technical Requirements;
(b) keep a complete and accurate record of the End User's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(c) notify the Supplier as soon as it becomes aware of any unauthorised use of the Services, Software, Abagy Solution and Abagy Offline Solution by any person;
(d) pay, for broadening the scope of the licences granted under the Licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced from such date to the date of payment; and
(e) take appropriate actions to protect the Services, Software, Abagy Solution and Abagy Offline Solution from unauthorised copying, modification or disclosure by its users and other third parties.
2.9 The End User shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Licence, Services, Software, Abagy Solution and Abagy Offline Solution for the purposes of ensuring that the End User is complying with the terms of the License, provided that the Supplier provides reasonable advance notice to the End User of such inspections, which shall take place at reasonable times.
2.10 The Supplier shall use reasonable commercial efforts to:
(a) give the End User access to the Services using the activation process set out in Clause 3;
(b) provide the End User with a Personal Account during the Subscription Period which the End User must use to access the Software;
(c) provide the End User with the Documentation and information necessary to use the Software for its functional purpose;
(d) provide the relevant Updates of the Software as and when they become available;
(e) install, at the expense of the End User, the relevant software module of the Abagy Solution on the local computer of the End User that makes up a part of the End User’s Robotic Cell; and
(f) offer training via a range of methods including webex, face to face and telephone sessions, where the End User has requested the same from the Supplier.
2.1 The Supplier grants to the End User a non-exclusive, non-transferable, non-sublicensable, revocable, limited subscription-based license for the Subscription Period, to access the Services and to use the Software for the End User’s business purposes and other purposes set out in this Agreement within the Territory (“Permitted Purposes”), including any Updates, that may be provided to the End Users by the Supplier from time to time, as and when available (“License”), but excluding any new Software features or substantial additional functionality for which the Supplier, in its sole discretion, generally may charge licensees additional charges.
2.2 In relation to the scope of use, use of the Software shall be restricted to use of the Software in object code form only and as set out in the Order Form for the purpose of processing the End User's data for the normal business purposes of the End User (which shall not include allowing the use of the Software by, or for the benefit of, any person other than any employee of the End User).
2.3 The End User may not use the Services, Software, Abagy Solution or Abagy Offline Solution other than as specified in Clause 2.1 and Clause 2.2 without the prior written consent of the Supplier, and the End User acknowledges that additional fees may be payable on any change of use approved by the Supplier.
2.4 The End User may not use any such information provided by the Supplier or obtained by the End User to create any software whose expression is substantially similar to that of the Services, Software, Abagy Solution or Abagy Offline Solution nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The End User shall not, and shall not permit any third party to:
(a) rent, transfer, lease, sub-license, assign or novate the benefit or burden of or otherwise distribute for re-sale the Licence, the Services, Software, Abagy Solution or Abagy Offline Solution, in whole or in part;
(b) obtain access to the Services, Software, Abagy Solution or Abagy Offline Solution;
(c) copy, adapt, disassemble, reverse engineer, create derivative works of, make error corrections to or decompile the Services, Software, Abagy Solution and Abagy Offline Solution, source code, structure, algorithms or ideas underlying them;
(d) modify the Services, Software, Abagy Solution and Abagy Offline Solution;
(e) allow the Services, including the Software, Abagy Solution and Abagy Offline Solution to become the subject of any charge, lien or encumbrance;
(f) deal in any other manner with any or all of its rights and obligations under this Agreement; and/or
(g) authorise, permit, aid or abet, assist or otherwise allow or purport to allow any third party to do any of the acts set out in this Clause 2.5.
2.6 The Supplier reserves all rights not expressly granted herein.
2.7 The End User confirms that it is acting on its own behalf and not for the benefit of any other person.
2.8 The End User shall:
(a) ensure that the Software is installed and maintained on designated equipment only in accordance with the Technical Requirements;
(b) keep a complete and accurate record of the End User's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(c) notify the Supplier as soon as it becomes aware of any unauthorised use of the Services, Software, Abagy Solution and Abagy Offline Solution by any person;
(d) pay, for broadening the scope of the licences granted under the Licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced from such date to the date of payment; and
(e) take appropriate actions to protect the Services, Software, Abagy Solution and Abagy Offline Solution from unauthorised copying, modification or disclosure by its users and other third parties.
2.9 The End User shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Licence, Services, Software, Abagy Solution and Abagy Offline Solution for the purposes of ensuring that the End User is complying with the terms of the License, provided that the Supplier provides reasonable advance notice to the End User of such inspections, which shall take place at reasonable times.
2.10 The Supplier shall use reasonable commercial efforts to:
(a) give the End User access to the Services using the activation process set out in Clause 3;
(b) provide the End User with a Personal Account during the Subscription Period which the End User must use to access the Software;
(c) provide the End User with the Documentation and information necessary to use the Software for its functional purpose;
(d) provide the relevant Updates of the Software as and when they become available;
(e) install, at the expense of the End User, the relevant software module of the Abagy Solution on the local computer of the End User that makes up a part of the End User’s Robotic Cell; and
(f) offer training via a range of methods including webex, face to face and telephone sessions, where the End User has requested the same from the Supplier.
3. ORDER PROCESS AND ACTIVATION
3.1 Prior to the Activation Date and any use, access and installation of the Software, the End User shall:
(a) ensure that all Technical Requirements are satisfied;
(b) ensure that any recommended hardware, if any, is installed at the Site;
(c) ensure that all necessary and prudent measures have been taken to protect its Robotic Cell(s) and computer systems;
(d) provide details of the Responsible Officer to the Supplier;
(e) at its own expense, replace, upgrade and perform maintenance on any parts of the Robotic Cell and/or equipment that are used in conjunction with the Software as and when necessary;
(f) operate the Robotic Cell in strict compliance with the Documentation (including but not limited to any operating instructions and specifications, technical process descriptions and the Technical Requirements);
(g) obtain and maintain any licences, permissions, consents or the like in respect of any third-party software or as otherwise required through the term of this Agreement; and
(h) provide the Supplier, upon its request, with the information and documentation necessary for the Supplier to carry out its obligations under this Agreement.
3.2The End User acknowledges that in the event the End User fails to perform its obligations under Clause 3.1 or satisfy the Technical Requirements in any way, the Supplier in its sole and absolute discretion may reject the Activation Request.
3.3 Where the End User wishes to purchase a Subscription for the first time or for a new Robotic Cell, the End User and the Supplier shall follow the ordering process set out in Part A of to this Agreement.
3.4 Where the End User wishes to renew a Subscription, the End User and the Supplier shall follow the ordering process set out in Part B of to this Agreement.
3.5 Where the End User wishes to purchase any Subscription or renew a Subscription via any reseller approved by the Supplier, the End User shall follow the ordering process set out in the relevant agreement between the Supplier and such reseller.
3.6 Where the End User wishes to purchase a Subscription for the Initial Subscription Period and a Renewal Period or more than one Renewal Period and the End User has fully paid the total Fees due for the Initial Subscription Period and subsequent Renewal Period(s) it has ordered, the Subscription will automatically be renewed by the Supplier.
3.7 If the End User wishes to purchase an additional Subscription for a Renewal Period after a Renewal Period or an Initial Subscription Period expires, the End User must follow the ordering process set out in and submit an Order Form at least twenty (20) Business Days before the expiry of the current Renewal Period or Initial Subscription Period.
3.8 The following shall apply:
(a) Unless otherwise provided in the Order Form, where the End User has ordered a Subscription for the Initial Subscription Period (so that the total Subscription Period consists of twelve (12) months), the End User must activate the Software within six (6) calendar months from the date of the Order Form. If the End User fails to activate the Software within the six-month period specified in this Clause 3.8(a), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(b) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and a Renewal Period (so that the total Subscription Period is for a term of twenty-four (24) months), the End User must activate the Software within eighteen (18) calendar months of the date of the Order Form. If the End User fails to activate the Software within the eighteen month period specified in this Clause 3.8(b), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(c) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and two Renewal Periods (so that the total Subscription Period is for a term of thirty-six (36) months, the End User must activate the Software within thirty (30) calendar months of the date of the Order Form. If the End User fails to activate the Software within the thirty month period specified in this Clause 3.8(c), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(d) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and three Renewal Periods (so that the total Subscription Period is for a term of forty-eight (48) months), the End User must activate the Software within forty-two (42) calendar months of the date of the Order Form. If the End User fails to activate the Software within the forty-two month period specified in this Clause 3.8(d), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(e) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and four Renewal Periods (so that the total Subscription Period is for a term of sixty (60) months), the End User must activate the Software within fifty-four (54) calendar months of the date of the Order Form. If the End User fails to activate the Software within the forty-two month period specified in this Clause 3.8(e) the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
3.9 If additional configuration and testing of the Software for controlling the Licensee's Robotics Cell equipment is necessary during the period prior to the Software activation, the Software may be used by Supplier in test mode in accordance with the appropriate Software testing protocol established by the Supplier.
3.1 Prior to the Activation Date and any use, access and installation of the Software, the End User shall:
(a) ensure that all Technical Requirements are satisfied;
(b) ensure that any recommended hardware, if any, is installed at the Site;
(c) ensure that all necessary and prudent measures have been taken to protect its Robotic Cell(s) and computer systems;
(d) provide details of the Responsible Officer to the Supplier;
(e) at its own expense, replace, upgrade and perform maintenance on any parts of the Robotic Cell and/or equipment that are used in conjunction with the Software as and when necessary;
(f) operate the Robotic Cell in strict compliance with the Documentation (including but not limited to any operating instructions and specifications, technical process descriptions and the Technical Requirements);
(g) obtain and maintain any licences, permissions, consents or the like in respect of any third-party software or as otherwise required through the term of this Agreement; and
(h) provide the Supplier, upon its request, with the information and documentation necessary for the Supplier to carry out its obligations under this Agreement.
3.2The End User acknowledges that in the event the End User fails to perform its obligations under Clause 3.1 or satisfy the Technical Requirements in any way, the Supplier in its sole and absolute discretion may reject the Activation Request.
3.3 Where the End User wishes to purchase a Subscription for the first time or for a new Robotic Cell, the End User and the Supplier shall follow the ordering process set out in Part A of to this Agreement.
3.4 Where the End User wishes to renew a Subscription, the End User and the Supplier shall follow the ordering process set out in Part B of to this Agreement.
3.5 Where the End User wishes to purchase any Subscription or renew a Subscription via any reseller approved by the Supplier, the End User shall follow the ordering process set out in the relevant agreement between the Supplier and such reseller.
3.6 Where the End User wishes to purchase a Subscription for the Initial Subscription Period and a Renewal Period or more than one Renewal Period and the End User has fully paid the total Fees due for the Initial Subscription Period and subsequent Renewal Period(s) it has ordered, the Subscription will automatically be renewed by the Supplier.
3.7 If the End User wishes to purchase an additional Subscription for a Renewal Period after a Renewal Period or an Initial Subscription Period expires, the End User must follow the ordering process set out in and submit an Order Form at least twenty (20) Business Days before the expiry of the current Renewal Period or Initial Subscription Period.
3.8 The following shall apply:
(a) Unless otherwise provided in the Order Form, where the End User has ordered a Subscription for the Initial Subscription Period (so that the total Subscription Period consists of twelve (12) months), the End User must activate the Software within six (6) calendar months from the date of the Order Form. If the End User fails to activate the Software within the six-month period specified in this Clause 3.8(a), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(b) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and a Renewal Period (so that the total Subscription Period is for a term of twenty-four (24) months), the End User must activate the Software within eighteen (18) calendar months of the date of the Order Form. If the End User fails to activate the Software within the eighteen month period specified in this Clause 3.8(b), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(c) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and two Renewal Periods (so that the total Subscription Period is for a term of thirty-six (36) months, the End User must activate the Software within thirty (30) calendar months of the date of the Order Form. If the End User fails to activate the Software within the thirty month period specified in this Clause 3.8(c), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(d) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and three Renewal Periods (so that the total Subscription Period is for a term of forty-eight (48) months), the End User must activate the Software within forty-two (42) calendar months of the date of the Order Form. If the End User fails to activate the Software within the forty-two month period specified in this Clause 3.8(d), the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
(e) Where the End User has ordered and fully paid for a Subscription consisting of the Initial Subscription Period and four Renewal Periods (so that the total Subscription Period is for a term of sixty (60) months), the End User must activate the Software within fifty-four (54) calendar months of the date of the Order Form. If the End User fails to activate the Software within the forty-two month period specified in this Clause 3.8(e) the Subscription shall be deemed cancelled and the Fees paid shall be refunded by the Supplier within sixty (60) calendar days from the date the Subscription is cancelled but with a deduction equivalent to 50% (fifty percent) of the total Fees payable for the Subscription as set out in the Order Form.
3.9 If additional configuration and testing of the Software for controlling the Licensee's Robotics Cell equipment is necessary during the period prior to the Software activation, the Software may be used by Supplier in test mode in accordance with the appropriate Software testing protocol established by the Supplier.
4. DATA
4.1 In consideration of the grant of the License and provision of the Software to the End User, the End User hereby agrees to provide the Supplier with any and all Data that the End User generates, collects and creates relating to the Software and the End User’s use and testing of the Software.
4.2 The End User will provide the Data to the Supplier as soon as reasonably practicable, but in any event it shall provide the Data to the Supplier on a continuous basis during and after the expiration of the term of this Agreement such that the Supplier holds all of the Data that the End User holds in relation to the Software and its use, testing and assessment by the End User.
4.1 In consideration of the grant of the License and provision of the Software to the End User, the End User hereby agrees to provide the Supplier with any and all Data that the End User generates, collects and creates relating to the Software and the End User’s use and testing of the Software.
4.2 The End User will provide the Data to the Supplier as soon as reasonably practicable, but in any event it shall provide the Data to the Supplier on a continuous basis during and after the expiration of the term of this Agreement such that the Supplier holds all of the Data that the End User holds in relation to the Software and its use, testing and assessment by the End User.
5. CHANGE REQUESTS
5.1 Any Change Requests shall be made by the End User by way of submitting an Order Form to the Supplier and, if approved by the Supplier, any such requested change shall be implemented by the Supplier upon receipt of any relevant Fees in the amounts and on the terms set out in such Order Form.
5.1 Any Change Requests shall be made by the End User by way of submitting an Order Form to the Supplier and, if approved by the Supplier, any such requested change shall be implemented by the Supplier upon receipt of any relevant Fees in the amounts and on the terms set out in such Order Form.
6. MAINTENANCE RELEASE
6.1 The Supplier will provide the End User with all Maintenance Releases generally made available to its end users, and the End User shall install all Maintenance Releases as soon as reasonably practicable after receipt.
6.2 The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
6.1 The Supplier will provide the End User with all Maintenance Releases generally made available to its end users, and the End User shall install all Maintenance Releases as soon as reasonably practicable after receipt.
6.2 The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
7. PAYMENT AND FEES
7.1 Unless otherwise provided in the Order Form, the End User shall make any payments to the Supplier in the amounts set out in the applicable Order Form and in accordance with the Fee Schedule set out in to this Agreement.
7.1 Unless otherwise provided in the Order Form, the End User shall make any payments to the Supplier in the amounts set out in the applicable Order Form and in accordance with the Fee Schedule set out in to this Agreement.
8. SUPPLIER’S WARRANTIES
8.1 The Supplier warrants that the Software conforms in all material respects to its specification for a period of sixty (60) days from the Activation Date as set out in the Documentation (Warranty Period). If, within the Warranty Period, the End User notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to its specification, and such defect or fault does not result from the End User, or anyone acting with the authority of the End User, having amended the Software or used it outside the terms of this License for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment and/or in breach of the Technical Requirements, the Supplier shall, at the Supplier’s option, do one of the following:
(a) repair/replace the Software; or
(b) terminate this Agreement and the Subscription herein immediately by notice in writing to the End User and procure the refund of any applicable Fees paid by the End User as at the date of termination on return of the Software,
provided the End User provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
8.2 With regards to Clause 8.1, the liability of the Supplier (and/or its Affiliates), whether based on an action or claim in contract, equity, negligence, tort or otherwise, for all events, acts or omissions shall not exceed, in the aggregate, an amount equal to the fees paid under this Agreement during the twelve (12) months immediately preceding the claim.
8.3 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free or that it will meet any Heightened Cybersecurity Requirements.
8.4 The End User accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the specific individual requirements of the End User (outside of the scope of the Order Form).
8.5 The End User acknowledges that any Open-Source Software provided by the Supplier is provided "as is" and expressly subject to the disclaimer in Clause 8.6.
8.6 Except for the express warranties, if any made by the Supplier, the Supplier makes no other warranties related to the Services, Software, Abagy Solution and/or Abagy Offline Solution, express or implied. The Supplier disclaims and excludes any and all implied warranties, including but not limited to implied warranties of merchantability, fitness for a particular purpose or use and non-infringement. No person is authorised to make any other warranty or representation concerning the Services, Software, Abagy Solution and/or Abagy Offline Solution. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any associated contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8.1 The Supplier warrants that the Software conforms in all material respects to its specification for a period of sixty (60) days from the Activation Date as set out in the Documentation (Warranty Period). If, within the Warranty Period, the End User notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to its specification, and such defect or fault does not result from the End User, or anyone acting with the authority of the End User, having amended the Software or used it outside the terms of this License for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment and/or in breach of the Technical Requirements, the Supplier shall, at the Supplier’s option, do one of the following:
(a) repair/replace the Software; or
(b) terminate this Agreement and the Subscription herein immediately by notice in writing to the End User and procure the refund of any applicable Fees paid by the End User as at the date of termination on return of the Software,
provided the End User provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
8.2 With regards to Clause 8.1, the liability of the Supplier (and/or its Affiliates), whether based on an action or claim in contract, equity, negligence, tort or otherwise, for all events, acts or omissions shall not exceed, in the aggregate, an amount equal to the fees paid under this Agreement during the twelve (12) months immediately preceding the claim.
8.3 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free or that it will meet any Heightened Cybersecurity Requirements.
8.4 The End User accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the specific individual requirements of the End User (outside of the scope of the Order Form).
8.5 The End User acknowledges that any Open-Source Software provided by the Supplier is provided "as is" and expressly subject to the disclaimer in Clause 8.6.
8.6 Except for the express warranties, if any made by the Supplier, the Supplier makes no other warranties related to the Services, Software, Abagy Solution and/or Abagy Offline Solution, express or implied. The Supplier disclaims and excludes any and all implied warranties, including but not limited to implied warranties of merchantability, fitness for a particular purpose or use and non-infringement. No person is authorised to make any other warranty or representation concerning the Services, Software, Abagy Solution and/or Abagy Offline Solution. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any associated contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in Clause 9.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the End User (or any person claiming under or through the End User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
(vii) any loss that is not reasonably foreseeable,
provided that this Clause 9.1(a) shall not prevent claims for loss of or damage to the End User’s tangible property that fall within the terms of Clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this Clause 9.1(a).
(b) the total aggregate liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement shall in no circumstances exceed a sum equal to the Fees paid or payable during the twelve (12) months immediately preceding the date on which the claim arose, less any amounts paid or payable in settlement of any other claims in such twelve (12) month period; and
(c) the End User agrees that, in entering into this Agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement; and (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in Clause 8.6 and Clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any liability which may not be excluded by law.
9.3 The End User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Software, Services, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defence and settlement of such claim, at the End User’s expense; and (iii) the End User is given authority to defend or settle the claim.
9.4 All dates supplied by the Supplier for the delivery of the Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.5 All references to "the Supplier" in this Clause 9 shall, for the purposes of this clause and Clause 23 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with Clause 23.
9.1 Except as expressly stated in Clause 9.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the End User (or any person claiming under or through the End User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
(vii) any loss that is not reasonably foreseeable,
provided that this Clause 9.1(a) shall not prevent claims for loss of or damage to the End User’s tangible property that fall within the terms of Clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this Clause 9.1(a).
(b) the total aggregate liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement shall in no circumstances exceed a sum equal to the Fees paid or payable during the twelve (12) months immediately preceding the date on which the claim arose, less any amounts paid or payable in settlement of any other claims in such twelve (12) month period; and
(c) the End User agrees that, in entering into this Agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement; and (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in Clause 8.6 and Clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any liability which may not be excluded by law.
9.3 The End User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Software, Services, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defence and settlement of such claim, at the End User’s expense; and (iii) the End User is given authority to defend or settle the claim.
9.4 All dates supplied by the Supplier for the delivery of the Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.5 All references to "the Supplier" in this Clause 9 shall, for the purposes of this clause and Clause 23 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with Clause 23.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in Clause 9.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the End User (or any person claiming under or through the End User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
(vii) any loss that is not reasonably foreseeable,
provided that this Clause 9.1(a) shall not prevent claims for loss of or damage to the End User’s tangible property that fall within the terms of Clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this Clause 9.1(a).
(b) the total aggregate liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement shall in no circumstances exceed a sum equal to the Fees paid or payable during the twelve (12) months immediately preceding the date on which the claim arose, less any amounts paid or payable in settlement of any other claims in such twelve (12) month period; and
(c) the End User agrees that, in entering into this Agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement; and (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in Clause 8.6 and Clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any liability which may not be excluded by law.
9.3 The End User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Software, Services, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defence and settlement of such claim, at the End User’s expense; and (iii) the End User is given authority to defend or settle the claim.
9.4 All dates supplied by the Supplier for the delivery of the Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.5 All references to "the Supplier" in this Clause 9 shall, for the purposes of this clause and Clause 23 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with Clause 23.
9.1 Except as expressly stated in Clause 9.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the End User (or any person claiming under or through the End User), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
(vii) any loss that is not reasonably foreseeable,
provided that this Clause 9.1(a) shall not prevent claims for loss of or damage to the End User’s tangible property that fall within the terms of Clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this Clause 9.1(a).
(b) the total aggregate liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement shall in no circumstances exceed a sum equal to the Fees paid or payable during the twelve (12) months immediately preceding the date on which the claim arose, less any amounts paid or payable in settlement of any other claims in such twelve (12) month period; and
(c) the End User agrees that, in entering into this Agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement; and (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in Clause 8.6 and Clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any liability which may not be excluded by law.
9.3 The End User shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the End User’s use of the Software, Services, Abagy Solution, Abagy Offline Solution and/or Documentation, provided that: (i) the End User is given notice of any such claim; (ii) the Supplier provides reasonable co-operation to the End User in the defence and settlement of such claim, at the End User’s expense; and (iii) the End User is given authority to defend or settle the claim.
9.4 All dates supplied by the Supplier for the delivery of the Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.5 All references to "the Supplier" in this Clause 9 shall, for the purposes of this clause and Clause 23 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with Clause 23.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The End User acknowledges that all Intellectual Property Rights and any Derivative Works in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases belong and shall belong to the Supplier, and the End User shall have no rights in or thereto other than the right to use it in accordance with the terms of this Agreement.
10.2 The End User may not exercise any right, title and/or interest in the the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases or any related Intellectual Property Rights, except for the limited usage rights granted to the End User in this Agreement.
10.3 This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases to the End User.
10.4 The End User acknowledges and agrees that the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, release and policy updates and all Derivative Works based on the foregoing are the proprietary property of the Supplier.
10.5 In the event that any Intellectual Property Rights in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases are or become vested in the End User as a result of or pursuant to this Agreement or otherwise, the End User agrees to do any act and execute any document to transfer the ownership thereof immediately to the Supplier.
10.6 The End User shall indemnify against all damages, costs and expenses arising from or incurred by reason of any infringement of intellectual property rights in the European Union.
10.1 The End User acknowledges that all Intellectual Property Rights and any Derivative Works in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases belong and shall belong to the Supplier, and the End User shall have no rights in or thereto other than the right to use it in accordance with the terms of this Agreement.
10.2 The End User may not exercise any right, title and/or interest in the the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases or any related Intellectual Property Rights, except for the limited usage rights granted to the End User in this Agreement.
10.3 This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases to the End User.
10.4 The End User acknowledges and agrees that the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, release and policy updates and all Derivative Works based on the foregoing are the proprietary property of the Supplier.
10.5 In the event that any Intellectual Property Rights in the Abagy Solution, Abagy Offline Solution, Services, Software, Updates and Maintenance Releases are or become vested in the End User as a result of or pursuant to this Agreement or otherwise, the End User agrees to do any act and execute any document to transfer the ownership thereof immediately to the Supplier.
10.6 The End User shall indemnify against all damages, costs and expenses arising from or incurred by reason of any infringement of intellectual property rights in the European Union.
11. TERM AND TERMINATION
11.1 The term of this Agreement begins on the Effective Date and shall continue for the term of the Initial Subscription Period and shall automatically renew for successive Renewal Periods that has been ordered and paid for by the End User until the expiry of the final Renewal Period, unless: (i) either Party provides written notice to the other Party to terminate this Agreement in accordance with Clause 11.2 or Clause 11.3 or (ii) the End User does not renew the Licence.
11.2 The Supplier may terminate this Agreement with immediate effect by giving written notice to the End User:
(a) in its sole and absolute discretion by providing thirty (30) calendar days’ notice to the End User at any time;
(b) if the End User fails to pay any amount due under its Subscription and remains in default not less than thirty (30) calendar days’ after being notified in writing to make such payment;
(c) if the End User commits a material breach of any other term of this Agreement; or
(d) if the End User is unable to pay its debts or otherwise enters into an insolvency procedure of any sort.
11.3 The End User may terminate this Agreement by giving thirty (30) calendar days’ notice to the Supplier after receiving notice of an amendment (as permitted under this Agreement) which are materially detrimental to the End User (“Detrimental Amendment”), that for the avoidance of doubt includes an increase in Fees and/or substantial loss of content or functionality in the Services or the Software to the End User's detriment and for which no reasonable substitute is provided), which notice shall not take effect until the date on which such amendment or increase comes into effect.
11.4 On termination for any reason:
(a) the End User shall cease all activities authorised by this Agreement;
(b) the End User shall immediately pay to the Supplier any sums due to the Supplier under this Agreement and the Supplier shall not be required to refund any Fees unless as a result of a breach of the Supplier by way of fraud, wilful default or gross negligence;
(c) the End User shall provide to the Supplier all Data and Confidential Information in its possession not already provided, alongside any additional reports relating to the use, testing and assessment of the Software and Services conducted by the End User;
(d) the End User shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control (including as installed on the Industrial Robot Controller) and, in the case of destruction, certify to the Supplier that it has done so;
(e) all activated Subscriptions that are already paid for in full shall continue in effect until the end of their applicable Subscription Period;
(f) the Supplier shall, within sixty (60) calendar days from the date of termination of the Agreement, refund to the End User any Subscription Fees in relation to any Subscriptions that have not been activated with a deduction equal to 50% of (fifty percent) of the full amount of Subscription Fees set out in the Order Form, unless the Parties agree otherwise in writing; and
(g) upon termination of the Agreement by the Supplier for whatsoever reason specified in sub-clauses (a) and (d) of 11.2, if the End User has pre-paid any Fees in respect of Subscriptions that have been activated already the Supplier’s sole liability to the End User in respect of such termination shall be to refund the pre-paid Fees with a deduction from the pre-Paid Fees for the period of time the End User had use of the pre-paid Subscription for the applicable Subscription Period. .
11.5 No refunds shall be due to the End User in the event of termination due to the End User’s material or continuous breach of this Agreement.
11.6 Any termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11.7 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
11.8 In the event of Termination of this Agreement for any reason whatsoever, Clause 1 (Definitions), Clause 8 (Supplier’s Warranties), Clause 9 (Limits of Liability), Clause 10 (Intellectual Property Rights) and Clauses from (and including) Clause 12 to Clause 27 shall survive for as long as necessary to effectuate their purposes, and shall bind the Parties and their respective representatives, successors and assigns.
11.1 The term of this Agreement begins on the Effective Date and shall continue for the term of the Initial Subscription Period and shall automatically renew for successive Renewal Periods that has been ordered and paid for by the End User until the expiry of the final Renewal Period, unless: (i) either Party provides written notice to the other Party to terminate this Agreement in accordance with Clause 11.2 or Clause 11.3 or (ii) the End User does not renew the Licence.
11.2 The Supplier may terminate this Agreement with immediate effect by giving written notice to the End User:
(a) in its sole and absolute discretion by providing thirty (30) calendar days’ notice to the End User at any time;
(b) if the End User fails to pay any amount due under its Subscription and remains in default not less than thirty (30) calendar days’ after being notified in writing to make such payment;
(c) if the End User commits a material breach of any other term of this Agreement; or
(d) if the End User is unable to pay its debts or otherwise enters into an insolvency procedure of any sort.
11.3 The End User may terminate this Agreement by giving thirty (30) calendar days’ notice to the Supplier after receiving notice of an amendment (as permitted under this Agreement) which are materially detrimental to the End User (“Detrimental Amendment”), that for the avoidance of doubt includes an increase in Fees and/or substantial loss of content or functionality in the Services or the Software to the End User's detriment and for which no reasonable substitute is provided), which notice shall not take effect until the date on which such amendment or increase comes into effect.
11.4 On termination for any reason:
(a) the End User shall cease all activities authorised by this Agreement;
(b) the End User shall immediately pay to the Supplier any sums due to the Supplier under this Agreement and the Supplier shall not be required to refund any Fees unless as a result of a breach of the Supplier by way of fraud, wilful default or gross negligence;
(c) the End User shall provide to the Supplier all Data and Confidential Information in its possession not already provided, alongside any additional reports relating to the use, testing and assessment of the Software and Services conducted by the End User;
(d) the End User shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control (including as installed on the Industrial Robot Controller) and, in the case of destruction, certify to the Supplier that it has done so;
(e) all activated Subscriptions that are already paid for in full shall continue in effect until the end of their applicable Subscription Period;
(f) the Supplier shall, within sixty (60) calendar days from the date of termination of the Agreement, refund to the End User any Subscription Fees in relation to any Subscriptions that have not been activated with a deduction equal to 50% of (fifty percent) of the full amount of Subscription Fees set out in the Order Form, unless the Parties agree otherwise in writing; and
(g) upon termination of the Agreement by the Supplier for whatsoever reason specified in sub-clauses (a) and (d) of 11.2, if the End User has pre-paid any Fees in respect of Subscriptions that have been activated already the Supplier’s sole liability to the End User in respect of such termination shall be to refund the pre-paid Fees with a deduction from the pre-Paid Fees for the period of time the End User had use of the pre-paid Subscription for the applicable Subscription Period. .
11.5 No refunds shall be due to the End User in the event of termination due to the End User’s material or continuous breach of this Agreement.
11.6 Any termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11.7 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
11.8 In the event of Termination of this Agreement for any reason whatsoever, Clause 1 (Definitions), Clause 8 (Supplier’s Warranties), Clause 9 (Limits of Liability), Clause 10 (Intellectual Property Rights) and Clauses from (and including) Clause 12 to Clause 27 shall survive for as long as necessary to effectuate their purposes, and shall bind the Parties and their respective representatives, successors and assigns.
12. CONFIDENTIALITY AND PUBLICITY
12.1 Subject to Clause 12.4, the End User shall treat as strictly confidential and shall not by any act or omission disclose to any other person or use or exploit commercially for its own (or that of its Affiliates or Representatives) purposes any Confidential Information.
12.2 For purposes of this Agreement, “Confidential Information” means:
(a) all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, trade secrets, Intellectual Property Rights and any related information, proprietary information, information of a commercial value, application programming interfaces and protocols in respect of the Supplier, and for the avoidance of any doubt, includes the Software, Abagy Solution, Abagy Offline Solution, Documentation, Software Specifications and Technical Requirements;
(b) any information received or obtained by the End User as a result of entering into or performing this Agreement;
(c) any information received or obtained by the End User from the Supplier either before or during the term of this Agreement relating either directly or indirectly to the business of the Supplier;
(d) any information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, Intellectual Property Rights, know-how, customers, suppliers, processes or affairs of the End User;
(e)any information which is expressly indicated to be confidential by the Supplier; and/or
(f) the existence or any details of this Agreement or the discussions between the Parties in connection therewith;
and includes without limitation analyses, memoranda, compilation studies, plans, notes, extracts or any other way of representing or recording information which contains or is derived from or otherwise reflect or are generated from Confidential Information (“Copies of Confidential Information”).
12.3 Confidential Information does not include:
(a) any information which was lawfully in the possession of the End User (as evidenced by written records) before the disclosure under this Agreement was made; or
(b) any information which is or has come into the public domain through no fault of the End User.
12.4 The End User may disclose information which would otherwise be subject to the provisions of Clause 12.1 and may retain information referred to in this Clause 12.4, if and to the extent:
(a) it is required by any applicable law or enactment to which the End User is subject;
(b) it is required by any Governmental Authority to which the End User is subject or submits, wherever situated, whether or not the requirement for information has the force of law;
(c) it is disclosed on a strictly confidential basis to the Representatives of the End User;
(d) that the Supplier has given prior written consent to the disclosure by the End User; or
(e) it is required to enable the End User to perform its obligations under this Agreement or enforce its rights under this Agreement and/or disclosure is required for the purposes of any proceedings;
and provided that to the extent permitted by applicable law any information to be disclosed by the End User in reliance on Clause 12.4(a) or 12.4(b) shall be disclosed only after consultation with the Supplier and the End User shall take into account, and to the extent possible, not to take any action in contravention of, the reasonable comments or requests of the Supplier.
12.5 The End User hereby agrees that it shall not use Confidential Information for any purpose other than in relation to the proper performance of its obligations and exercise of its rights under this Agreement (and the transactions contemplated hereby).
12.1 Subject to Clause 12.4, the End User shall treat as strictly confidential and shall not by any act or omission disclose to any other person or use or exploit commercially for its own (or that of its Affiliates or Representatives) purposes any Confidential Information.
12.2 For purposes of this Agreement, “Confidential Information” means:
(a) all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, trade secrets, Intellectual Property Rights and any related information, proprietary information, information of a commercial value, application programming interfaces and protocols in respect of the Supplier, and for the avoidance of any doubt, includes the Software, Abagy Solution, Abagy Offline Solution, Documentation, Software Specifications and Technical Requirements;
(b) any information received or obtained by the End User as a result of entering into or performing this Agreement;
(c) any information received or obtained by the End User from the Supplier either before or during the term of this Agreement relating either directly or indirectly to the business of the Supplier;
(d) any information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, Intellectual Property Rights, know-how, customers, suppliers, processes or affairs of the End User;
(e)any information which is expressly indicated to be confidential by the Supplier; and/or
(f) the existence or any details of this Agreement or the discussions between the Parties in connection therewith;
and includes without limitation analyses, memoranda, compilation studies, plans, notes, extracts or any other way of representing or recording information which contains or is derived from or otherwise reflect or are generated from Confidential Information (“Copies of Confidential Information”).
12.3 Confidential Information does not include:
(a) any information which was lawfully in the possession of the End User (as evidenced by written records) before the disclosure under this Agreement was made; or
(b) any information which is or has come into the public domain through no fault of the End User.
12.4 The End User may disclose information which would otherwise be subject to the provisions of Clause 12.1 and may retain information referred to in this Clause 12.4, if and to the extent:
(a) it is required by any applicable law or enactment to which the End User is subject;
(b) it is required by any Governmental Authority to which the End User is subject or submits, wherever situated, whether or not the requirement for information has the force of law;
(c) it is disclosed on a strictly confidential basis to the Representatives of the End User;
(d) that the Supplier has given prior written consent to the disclosure by the End User; or
(e) it is required to enable the End User to perform its obligations under this Agreement or enforce its rights under this Agreement and/or disclosure is required for the purposes of any proceedings;
and provided that to the extent permitted by applicable law any information to be disclosed by the End User in reliance on Clause 12.4(a) or 12.4(b) shall be disclosed only after consultation with the Supplier and the End User shall take into account, and to the extent possible, not to take any action in contravention of, the reasonable comments or requests of the Supplier.
12.5 The End User hereby agrees that it shall not use Confidential Information for any purpose other than in relation to the proper performance of its obligations and exercise of its rights under this Agreement (and the transactions contemplated hereby).
13. DATA PROTECTION
13.1 The Parties acknowledge that each Party may disclose to the other party certain limited personal data in the form of business contacts details of their personnel as detailed in the Order Form or as otherwise provided under or in connection with this Agreement.
13.2 The provisions which follow set out the framework for the sharing of personal data between the Parties as data controllers including, without limitation, for the purposes of Clauses 13.1 to 13.2. Each Party acknowledges that one Party (the "Data Discloser") will disclose to the other Party (the "Data Recipient") shared personal data collected by the Data Discloser for the Agreed Purposes (“Shared Personal Data”).
13.3 Each Party shall:
(a) ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipient;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
(f) not transfer any personal data received from the Data Discloser outside the UK or EEA unless the transferor ensures that:
(i) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or
(ii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
(iii) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
13.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the shared personal data;
(b) promptly inform the other party about the receipt of any data subject rights request;
(c) provide the other party with reasonable assistance in complying with any data subject rights request;
(d) not disclose, release, amend, delete or block any shared personal data in response to a data subject rights request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the data protection legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the information commissioner or other regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the data protection legislation;
(g) at the written direction of the data discloser, delete or return shared personal data and copies thereof to the data discloser on termination of this agreement unless required by law to store the shared personal data;
(h) use compatible technology for the processing of shared personal data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the other party or the other party’s designated auditor; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the data protection legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the data protection legislation.
13.5 Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of the indemnifying party under this clause shall be subject to the limits set out in Clause 12.
13.1 The Parties acknowledge that each Party may disclose to the other party certain limited personal data in the form of business contacts details of their personnel as detailed in the Order Form or as otherwise provided under or in connection with this Agreement.
13.2 The provisions which follow set out the framework for the sharing of personal data between the Parties as data controllers including, without limitation, for the purposes of Clauses 13.1 to 13.2. Each Party acknowledges that one Party (the "Data Discloser") will disclose to the other Party (the "Data Recipient") shared personal data collected by the Data Discloser for the Agreed Purposes (“Shared Personal Data”).
13.3 Each Party shall:
(a) ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipient;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
(f) not transfer any personal data received from the Data Discloser outside the UK or EEA unless the transferor ensures that:
(i) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or
(ii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
(iii) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
13.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the shared personal data;
(b) promptly inform the other party about the receipt of any data subject rights request;
(c) provide the other party with reasonable assistance in complying with any data subject rights request;
(d) not disclose, release, amend, delete or block any shared personal data in response to a data subject rights request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the data protection legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the information commissioner or other regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the data protection legislation;
(g) at the written direction of the data discloser, delete or return shared personal data and copies thereof to the data discloser on termination of this agreement unless required by law to store the shared personal data;
(h) use compatible technology for the processing of shared personal data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the other party or the other party’s designated auditor; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the data protection legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the data protection legislation.
13.5 Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it. The liability of the indemnifying party under this clause shall be subject to the limits set out in Clause 12.
14. EXPORT AND COMPLIANCE POLICIES
14.1 The End User shall not export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), to any country for which any Government Agency at the time export requires an export license or other governmental approval without first obtaining such license or approval.
14.2 If the Services, Software, Abagy Solution or Abagy Offline Solution is identified as an export-controlled item under Export Control Laws, the End User represents and warrants that it is not a citizen of, or otherwise located within, an embargoed nation and that it is not otherwise prohibited under the Export Control Laws from receiving the Software.
14.3 The End User shall comply with all applicable laws, statutes, ordinances, regulations and restrictions of any country in respect of the Services, Software, Abagy Solution or Abagy Offline Solution, the Documentation and this Agreement in respect of export, re-export, download or any other activity as set out in this Agreement.
14.4 All rights and use of the Software are granted on the conditions that such rights are forfeited if the End User fails to comply with the terms of any Export Control Laws.
14.1 The End User shall not export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), to any country for which any Government Agency at the time export requires an export license or other governmental approval without first obtaining such license or approval.
14.2 If the Services, Software, Abagy Solution or Abagy Offline Solution is identified as an export-controlled item under Export Control Laws, the End User represents and warrants that it is not a citizen of, or otherwise located within, an embargoed nation and that it is not otherwise prohibited under the Export Control Laws from receiving the Software.
14.3 The End User shall comply with all applicable laws, statutes, ordinances, regulations and restrictions of any country in respect of the Services, Software, Abagy Solution or Abagy Offline Solution, the Documentation and this Agreement in respect of export, re-export, download or any other activity as set out in this Agreement.
14.4 All rights and use of the Software are granted on the conditions that such rights are forfeited if the End User fails to comply with the terms of any Export Control Laws.
15. FORCE MAJEURE
15.1 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 events, circumstances or causes beyond its reasonable control.
15.2 In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for more than two months, the Party not affected may terminate this Agreement by giving a 30 Business Days written notice to the affected Party.
15.1 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 events, circumstances or causes beyond its reasonable control.
15.2 In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for more than two months, the Party not affected may terminate this Agreement by giving a 30 Business Days written notice to the affected Party.
16. ASSIGNMENT AND SUB-CONTRACTING
16.1 The End User shall not assign, transfer, sub-contract or encumber any right or obligation under this Agreement, in whole or in part, without the Supplier’s prior written consent.
16.2 The Supplier may assign any of its rights or obligations under this Agreement upon giving notice to the End User.
16.1 The End User shall not assign, transfer, sub-contract or encumber any right or obligation under this Agreement, in whole or in part, without the Supplier’s prior written consent.
16.2 The Supplier may assign any of its rights or obligations under this Agreement upon giving notice to the End User.
17. ENTIRE AGREEMENT
17.1 Each of the Parties confirms that this Agreement, together with the Schedules and any document expressly referred to in any of its terms, represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and the transactions contemplated by it, and supersedes all previous agreements, understandings or arrangements (whether express, implied, oral or written (whether or not in draft form) between the Parties with respect thereto which shall cease to have any further force or effect.
17.2 Each Party confirms that in entering into this Agreement it has not relied on any representation, warranty, collateral contract, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out in this Agreement.
17.3 Without limiting the generality of the foregoing, each Party irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind this Agreement by any reason of any misrepresentation (other than fraudulent misrepresentation) having been made to it by any person (whether or not a Party to this Agreement) and upon which it has relied in entering into this Agreement.
17.4 Nothing in this Clause 17 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
17.1 Each of the Parties confirms that this Agreement, together with the Schedules and any document expressly referred to in any of its terms, represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and the transactions contemplated by it, and supersedes all previous agreements, understandings or arrangements (whether express, implied, oral or written (whether or not in draft form) between the Parties with respect thereto which shall cease to have any further force or effect.
17.2 Each Party confirms that in entering into this Agreement it has not relied on any representation, warranty, collateral contract, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out in this Agreement.
17.3 Without limiting the generality of the foregoing, each Party irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind this Agreement by any reason of any misrepresentation (other than fraudulent misrepresentation) having been made to it by any person (whether or not a Party to this Agreement) and upon which it has relied in entering into this Agreement.
17.4 Nothing in this Clause 17 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
18. VARIATION
18.1 The Supplier reserves the right to amend this Agreement at any time in its sole discretion without the consent of the End User, provided that: (i) such changes will be notified by the Supplier to the End User in writing or via the End User’s Personal Account within ten (10) Business Days of the date of the decision to amend; and (ii) if such changes to this Agreement constitute a material change, such notice of change in the terms may not apply to the Subscriptions in relation to which the relevant Order Form has been approved by the Supplier and the full amount of the Subscription Fees has been received by the Supplier.
18.2 The Supplier has the exclusive right to establish and modify the pricing terms set forth in this Agreement from time to time, except to the extent such modifications do not affect Subscriptions that are fully paid for.
18.1 The Supplier reserves the right to amend this Agreement at any time in its sole discretion without the consent of the End User, provided that: (i) such changes will be notified by the Supplier to the End User in writing or via the End User’s Personal Account within ten (10) Business Days of the date of the decision to amend; and (ii) if such changes to this Agreement constitute a material change, such notice of change in the terms may not apply to the Subscriptions in relation to which the relevant Order Form has been approved by the Supplier and the full amount of the Subscription Fees has been received by the Supplier.
18.2 The Supplier has the exclusive right to establish and modify the pricing terms set forth in this Agreement from time to time, except to the extent such modifications do not affect Subscriptions that are fully paid for.
19. NO PARTNERSHIP OR AGENCY
19.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. WAIVER
20.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further 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.
20.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further 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.
21. NOTICES
21.1 Any notice or other communication required to be given under this Agreement or in connection with the matters contemplated by it shall, except where otherwise specifically provided, be in writing in the English language and shall be deemed served on, or delivered to, the intended recipient:
(a) if delivered by hand or courier, on signature of a delivery receipt or at the time the notice, document or other information is left at the address; or
(b) if sent by pre-paid airmail, first class post, recorded delivery or special delivery to an address outside the country from which it is sent, at 9.00 am on the fifth Business Day after posting; or
(c) if sent by reputable international overnight courier to an address outside the country from which it is sent, on signature of a delivery receipt or at the time the notice, document or other information is left at the address; or
(d) if sent or supplied by e-mail, one hour after the notice, document or information was sent or supplied;
and if deemed receipt under the previous paragraphs of this Clause 21.1 would occur outside business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), at 9.00 am on the day when business next starts in the place of deemed receipt. For the purposes of this Clause 21.1, all references to time are to local time in the place of deemed receipt.
21.2 The addresses and email addresses for service of notices are:
In the case of the Supplier:
For the attention of: Board of Directors of Abagy Limited
Address: 6 Vasili Vryonidi Street, Gala Court Chambers, 5th Floor,
Office 503, 3095 Limassol Cyprus
Telephone: [•]
E-mail address: [•]
In case of the End User, the address and email address included by the End User in the Order Form.
21.3 A Party may change its details for service of notices as specified in Clause 21.2 by giving notice to the other parties, provided that such notification shall only be effective on the later of the date specified in the notice or five (5) Business Days after the notice is given.
21.4 This Clause 21.4 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Clause 21.4, “writing” shall not include e-mail.
21.1 Any notice or other communication required to be given under this Agreement or in connection with the matters contemplated by it shall, except where otherwise specifically provided, be in writing in the English language and shall be deemed served on, or delivered to, the intended recipient:
(a) if delivered by hand or courier, on signature of a delivery receipt or at the time the notice, document or other information is left at the address; or
(b) if sent by pre-paid airmail, first class post, recorded delivery or special delivery to an address outside the country from which it is sent, at 9.00 am on the fifth Business Day after posting; or
(c) if sent by reputable international overnight courier to an address outside the country from which it is sent, on signature of a delivery receipt or at the time the notice, document or other information is left at the address; or
(d) if sent or supplied by e-mail, one hour after the notice, document or information was sent or supplied;
and if deemed receipt under the previous paragraphs of this Clause 21.1 would occur outside business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), at 9.00 am on the day when business next starts in the place of deemed receipt. For the purposes of this Clause 21.1, all references to time are to local time in the place of deemed receipt.
21.2 The addresses and email addresses for service of notices are:
In the case of the Supplier:
For the attention of: Board of Directors of Abagy Limited
Address: 6 Vasili Vryonidi Street, Gala Court Chambers, 5th Floor,
Office 503, 3095 Limassol Cyprus
Telephone: [•]
E-mail address: [•]
In case of the End User, the address and email address included by the End User in the Order Form.
21.3 A Party may change its details for service of notices as specified in Clause 21.2 by giving notice to the other parties, provided that such notification shall only be effective on the later of the date specified in the notice or five (5) Business Days after the notice is given.
21.4 This Clause 21.4 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Clause 21.4, “writing” shall not include e-mail.
22. SEVERABILITY
22.1 If at any time any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable in whole or in part by any judicial or other competent authority, or under any enactment or rule of law in any jurisdiction, then such provision shall:
(e) to the extent that it is illegal, void, invalid or unenforceable be given no effect and shall be deemed not to be included in this Agreement, and
(f) not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability under the law of any other jurisdiction of such provision or any other provision of this Agreement.
22.2 The Parties shall use all reasonable endeavours to replace such a provision with a valid and enforceable substitute provision which carries out, as closely as possible, the intentions of the Parties under this Agreement.
22.1 If at any time any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable in whole or in part by any judicial or other competent authority, or under any enactment or rule of law in any jurisdiction, then such provision shall:
(e) to the extent that it is illegal, void, invalid or unenforceable be given no effect and shall be deemed not to be included in this Agreement, and
(f) not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or the legality, validity or enforceability under the law of any other jurisdiction of such provision or any other provision of this Agreement.
22.2 The Parties shall use all reasonable endeavours to replace such a provision with a valid and enforceable substitute provision which carries out, as closely as possible, the intentions of the Parties under this Agreement.
23. THIRD PARTY RIGHTS
23.1 Except as provided in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
23.1 Except as provided in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
24. CUMULATIVE REMEDIES
24.1 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.2 In the event that damages are not an adequate remedy, the Supplier shall be entitled to any other right or remedy available to it, including, but not limited to, an action for damages, the remedies of injunction, specific performance and other equitable relief in any court of competent jurisdiction, for any potential, threatened or actual breach.
24.1 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.2 In the event that damages are not an adequate remedy, the Supplier shall be entitled to any other right or remedy available to it, including, but not limited to, an action for damages, the remedies of injunction, specific performance and other equitable relief in any court of competent jurisdiction, for any potential, threatened or actual breach.
25. NO SET-OFF
25.1 Every amount payable under this Agreement by one Party to another shall be made in full without any set-off or counterclaim howsoever arising and shall be free and clear of deduction or withholding of any kind other than any deduction or withholding required by law.
25.2 Unless otherwise expressly stated in this Agreement, all payments to be made under this Agreement shall be made in Euros, the lawful currency of the European Union, to such account as the receiving Party directs by notice to the paying Party.
25.1 Every amount payable under this Agreement by one Party to another shall be made in full without any set-off or counterclaim howsoever arising and shall be free and clear of deduction or withholding of any kind other than any deduction or withholding required by law.
25.2 Unless otherwise expressly stated in this Agreement, all payments to be made under this Agreement shall be made in Euros, the lawful currency of the European Union, to such account as the receiving Party directs by notice to the paying Party.
26. DISPUTE RESOLUTION
26.1 In respect of any dispute, controversy or claim arising out of or in connection with all matters relating to this Agreement, or otherwise (including any question regarding its existence, formation, validity, enforceability, performance, breach or termination or the consequences of nullity) (a “Dispute”), the Parties shall seek in good faith to resolve such Dispute promptly and amicably through negotiations.
26.2 If for any reason the Dispute is not resolved within 60 (sixty) Business Days of commencement of the negotiations between the Parties to resolve the Dispute, the Dispute shall be referred to and finally resolved in accordance with Clause 27.
26.1 In respect of any dispute, controversy or claim arising out of or in connection with all matters relating to this Agreement, or otherwise (including any question regarding its existence, formation, validity, enforceability, performance, breach or termination or the consequences of nullity) (a “Dispute”), the Parties shall seek in good faith to resolve such Dispute promptly and amicably through negotiations.
26.2 If for any reason the Dispute is not resolved within 60 (sixty) Business Days of commencement of the negotiations between the Parties to resolve the Dispute, the Dispute shall be referred to and finally resolved in accordance with Clause 27.
27. GOVERNING LAW AND JURISDICTION
27.1 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 shall be governed by, and construed in accordance with, English law.
27.2 The Parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England to settle any claim, dispute or difference (including non-contractual claims, disputes or differences) which may arise out of or in connection with this Agreement or its subject matter (including a dispute regarding the existence, validity, formation, effect, interpretation, performance or termination of this Agreement) and that accordingly any Proceedings be brought in such courts.
27.3 It is hereby agreed that the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded if and to the extent it applies to this Agreement and the License.
27.1 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 shall be governed by, and construed in accordance with, English law.
27.2 The Parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England to settle any claim, dispute or difference (including non-contractual claims, disputes or differences) which may arise out of or in connection with this Agreement or its subject matter (including a dispute regarding the existence, validity, formation, effect, interpretation, performance or termination of this Agreement) and that accordingly any Proceedings be brought in such courts.
27.3 It is hereby agreed that the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded if and to the extent it applies to this Agreement and the License.
Schedule 1 – Order Form and Confirmation Request Form
CONFIRMATION REQUEST FORM
CONFIRMATION REQUEST #____
In accordance with the EUSLA, the Reseller and/or the End User submits this Confirmation Request to the Supplier providing the description of the End User’s Robotic Cell to be managed by the Software to ensure that the Robotic Cell complies with the Technical Specification and where relevant the recommended technical requirements are installed at the site of the End User prior to installation of the Software.
FOR NEW OR MODIFIED (NOT CONFIRMED BY THE SUPPLIER) RC ONLY:
In accordance with the EUSLA, the Reseller and/or the End User submits this Confirmation Request to the Supplier providing the description of the End User’s Robotic Cell to be managed by the Software to ensure that the Robotic Cell complies with the Technical Specification (as set out in Schedule 4 to the EUSLA) and where relevant the recommended technical requirements are installed at the site of the End User prior to installation of the Software.
1. Description of the Robotic Cell:
Robot Equipment:
(i) Model name;
(ii) Robot controller name;
(iii) Software version;
(iv) Options/additional tools installed (can be replaced with an AOA-backup);
(v) External axis description, if installed (tracks, positioners, etc).
Functional Equipment:
(i) Model name & specification;
(ii) List of functional technologies currently used.
Cell Information:
(i) Cell 3D model/picture where workzones, robot & functional equipment placements, fences, ventilation and safety systems are shown;
(ii) Inner dimensions of the Robotic Cell;
(iii) Functional process description (and/or PLC programs, if used);
(iv) Examples of details produced, 3D-models in STP format are preferable;
(v) Videos (or photos) of working Robotic Cell (if possible according to any confidentiality agreement in place).
Signed by [NAME OF DIRECTOR] for and on behalf of the [End User/Reseller]
....................
Director
Schedule 2 – Technical Requirements
To be compatible with the Software the Robotic Cell of the End Customer has to meet at least the following technological parameters:
1. Robot equipment requirements
a. Supported manufacturers are: ABB, Fanuc, Kuka. Yaskawa. Acceptable software versions are listed below:
b. Ethernet IP protocol support is mandatory
2. Welding system requirements
a. Welding material feeding (wire, gas, etc) should be performed automatically and connected to the robot controller
3. Internet Requirements
a. End User`s facility should be equipped with at least 100Mbps Internet connection.
b. Internet cable should be located near the Robotic Cell
4. Operator’s PC requirements
a. Hardware requirements:
i. Intel i7 CPU is recommended
ii. 32Gb RAM DDR4 is recommended
iii. SSD-drive is recommended
b. Software requirements:
i. Operating system – any
ii. Chrome-based web browser is mandatory
iii. TeamViewer client installed is mandatory
2. Welding system requirements
a. Welding material feeding (wire, gas, etc) should be performed automatically and connected to the robot controller
3. Internet Requirements
a. End User`s facility should be equipped with at least 100Mbps Internet connection.
b. Internet cable should be located near the Robotic Cell
4. Operator’s PC requirements
a. Hardware requirements:
i. Intel i7 CPU is recommended
ii. 32Gb RAM DDR4 is recommended
iii. SSD-drive is recommended
b. Software requirements:
i. Operating system – any
ii. Chrome-based web browser is mandatory
iii. TeamViewer client installed is mandatory
Schedule 3 – Software Specifications
Capitalised terms used in this Software Specifications Form have the meanings assigned to such terms in the End User License Agreement (the “EULA”) if applicable.
Software Product Characteristics
Abagy Offline (Welding Edition)
Abagy Solution (Welding Edition)
Digital Twin
Option to upload a 3D model of the End User’s Robotic Cell to the End User’s Personal Account and create a digital twin of the Robotic Cell
Personal Account
Option to upload 3D models of welded products to the End User’s Personal Account for purposes of generating robot control programmes
Identification
Automatic identification of welding seams
Welding Procedure Chart
A functionality feature allowing the creation of a welding procedure chart required for welding a product based on an uploaded 3D model, which includes:
- orientation of the product in a Robotic Cell
- selecting seams to be welded
- option to set the welding sequence of seams
- option to set technological parameters or to use parameters provided automatically by the system
- option to group the welds in such a way that equal parameters can be applied to a group
Technology Map
Simulation and animation of the technological process according to the created technology map for the purpose of preliminary verification
Real Work Area
Adaptation of motion paths to variations in the real work area, and placement of parts within the work area during the execution of technological operation. There is no requirement for zero points.
Deviations from 3D Model
Adaptation of motion paths to the deviations of the parts from the 3D model (in the event of non-ideal blank production), uploaded to the personal account during the execution of technological operation. The permissible tolerance limit to deviations is set by the process engineer/technologist of the End User
Analysis
Real-time analysis of operation process of the Robotic Cell
Adaptive Programme
One Adaptive Programme enabling the End User to execute any number of specific production tasks for one specific product as long as the following process remains the same:
Note: A new Adaptive Programme is created when an End User changes any of the elements above.
- the 3D model of a product is used to fulfill the task
- the same technology chart (specific technological production parameters and specific sequence of parts / seams / surfaces to be processed) created by the End User is used for manufacturing of the product;
Note: A new Adaptive Programme is created when an End User changes any of the elements above.
Ready-to-use
Creation of a ready-to-use control programme for welding the product according to the loaded 3D model
Download/Upload
The programme is available for downloading and uploading to the robot controller
Reuse
Saving the generated control programme for later re-use in the production of future copies of the given product
Automatic Adaptation
Automatic adaptation of control programme during the manufacturing process in order to adapt the robot's motion path and welding procedure to the real work area and part deviations from 3D models
Robots
Fanuc, Kuka and Yaskawa
Welding Sources
Fronius, Esab, EWM, Lincoln and Lorch
Adaptability
Adaptability including the option of automatic robot retraining
Deviations
The system can process parts with deviations from 3D model, within the limits accepted by the End User's technical standards
Schedule 4 – Fee Schedule
1. The following additional definitions shall apply to this Schedule in addition to the Definitions set out in Clause 1 of the Agreement:
“Initial Payment”
means a payment: (i) payable upfront by the End User to the Supplier, (ii) in relation to the Subscription, including the number of Adaptive Programmes set out in the Order Form available to the End User during the Subscription Period, (iii) excluding any Additional Programmes available to the End User upon request and for which the Regular Payment shall be due, and (iv) as set out in the Order Form and the invoice provided by the Supplier to the End User in accordance with such Order Form.
“Regular Payment”
means a payment: (i) payable by the End User to the Supplier, (ii) in relation to the number of Additional Programmes used by the End User during the relevant billing period, (iii) calculated on a per Additional Programme basis, (iv) the payment for which has not been received by the Supplier as part of the Initial Payment, and (v) payable quarterly in accordance with the relevant Order Form and the invoice provided by the Supplier to the End User in accordance with such Order Form.
“Upfront Payment”
means the single upfront payment payable by an End User to the Supplier in the amount equal to the full amount of the Subscription Fees for the Subscription Period in accordance with the relevant Order Form and the invoice provided by the Supplier to the End User in accordance with such Order Form.
2. If the applicable Order Form provides for Regular Payments in relation to the Initial Subscription Period or any Renewal Period, the End User shall pay either the Initial Payment or the Regular Payment or both.
3. If the applicable Order Form does not provide for Regular Payments in relation to the Initial Subscription Period or any Renewal Period and the Order Form specifies an Upfront Payment, the End User shall make the Upfront Payment 20 (twenty) Business Days prior to the Activation Date, unless the Order Form provides otherwise.
4. In respect of the Abagy Offline Solution, the Fees shall be payable by the End User quarterly either during the Initial Subscription Period or any subsequent Renewal Period, in accordance with the invoice terms chargeable per Additional Programme and as set out in the Order Form.
5. The Supplier’s current Fees are available to the End User upon written request but are subject to review and may be changed by the Supplier from time to time.
6. The Supplier reserves the right to charge additional Fees in cases set out in the Agreement, including where the End User submits a Change Request.
7. Unless otherwise provided in the Order Form each invoice is payable, in full, within 20 (twenty) Business Days of the date of the invoice.
8. In the event of any dispute as to the amount of an invoice, the End User shall pay the disputed amount in full pending the resolution of any dispute, and the Supplier shall make any appropriate adjustments upon such resolution without any unreasonable delay.
9. All payments to be made by the End User under this Agreement are exclusive of value added (or any similar tax, costs or charges) tax (if applicable), sales tax or customs duty which shall, where appropriate, be payable by the End User; and shall be paid free and clear of all deductions or withholdings of any kind.
10. All amounts are expressed in Euros or as mutually agreed between the Parties.
11. If a payment is not made by the due date , except to the extent that any part non-payment relates to a bona fide disputed invoice, without prejudice to any rights or remedies otherwise available, the Supplier reserves the right to: (i) charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Bank of Cyprus Public Company LTD or the maximum interest rate permitted by law, whichever is the greater, (ii) terminate the Subscription to use the Software, and/or (iii) disable the End User’s access to the Services, Software, Abagy Solution or Abagy Offline Solution.
3. If the applicable Order Form does not provide for Regular Payments in relation to the Initial Subscription Period or any Renewal Period and the Order Form specifies an Upfront Payment, the End User shall make the Upfront Payment 20 (twenty) Business Days prior to the Activation Date, unless the Order Form provides otherwise.
4. In respect of the Abagy Offline Solution, the Fees shall be payable by the End User quarterly either during the Initial Subscription Period or any subsequent Renewal Period, in accordance with the invoice terms chargeable per Additional Programme and as set out in the Order Form.
5. The Supplier’s current Fees are available to the End User upon written request but are subject to review and may be changed by the Supplier from time to time.
6. The Supplier reserves the right to charge additional Fees in cases set out in the Agreement, including where the End User submits a Change Request.
7. Unless otherwise provided in the Order Form each invoice is payable, in full, within 20 (twenty) Business Days of the date of the invoice.
8. In the event of any dispute as to the amount of an invoice, the End User shall pay the disputed amount in full pending the resolution of any dispute, and the Supplier shall make any appropriate adjustments upon such resolution without any unreasonable delay.
9. All payments to be made by the End User under this Agreement are exclusive of value added (or any similar tax, costs or charges) tax (if applicable), sales tax or customs duty which shall, where appropriate, be payable by the End User; and shall be paid free and clear of all deductions or withholdings of any kind.
10. All amounts are expressed in Euros or as mutually agreed between the Parties.
11. If a payment is not made by the due date , except to the extent that any part non-payment relates to a bona fide disputed invoice, without prejudice to any rights or remedies otherwise available, the Supplier reserves the right to: (i) charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Bank of Cyprus Public Company LTD or the maximum interest rate permitted by law, whichever is the greater, (ii) terminate the Subscription to use the Software, and/or (iii) disable the End User’s access to the Services, Software, Abagy Solution or Abagy Offline Solution.
Schedule 5 – Order Process
A. New End User or New Robotic Cell
- The End User shall send the Supplier an e-mail expressing a wish to purchase a Subscription.
- The Supplier shall provide the End User with the then current Fees and the Agreement, including the Confirmation Request Form as set out in to this Agreement.
- Where the End User is either: (i) ordering a Subscription from the Supplier for the first time or (ii) ordering a License for a Robotic Cell for which it has not ordered a Subscription previously, the End User shall complete the Confirmation Request Form. For the avoidance of any doubt, the End User’s submission of the Confirmation Request Form to the Supplier shall serve as a confirmation that the End User’s Robotic Cell meets the Technical Requirements.
- The Supplier shall review the Confirmation Request Form and advise the End User within 5 (five) Business Days whether or not the Confirmation Request Form has been approved.
- Upon approval, the Supplier shall send the End User the Order Form in the format set out in of this Agreement, which shall specify, among other things, and whether an Initial Subscription Fee or Renewal Subscription Fee or a combination thereof or any other Fees are payable by the End User to the Supplier by way of an Initial Payment, any Regular Payments, an Upfront Payment or a combination thereof.
- The End User shall submit a fully completed and signed Order Form for the Supplier’s review and acceptance.
- If the Order Form has been accepted, the Supplier shall issue an invoice to the End User specifying the amounts payable by the End User to the Supplier in accordance with paragraph 4 of Part A above.
- The End User shall settle the invoice in accordance with the instructions contained therein within 20 (twenty) Business Days from the date of the invoice and in accordance with the invoice terms.
- For any End User purchasing the Subscription for the first time, the Supplier shall within two (2) Business Days of payment under paragraph 7 above: (i) set up such End User’s Personal Account, (ii) provide such End User with a log-in name and password via email allowing such End User access to its Personal Account, and (iii) confirm via email that the Subscription has been purchased and is ready to be activated.
- For any existing End User, the Supplier shall confirm via email that the Subscription is ready to be activated.
- The End User shall make an Activation Request within (6) calendar months of receiving a confirmation email from the Supplier as set out in Paragraph 9.
- The Supplier shall activate the Subscription and assign a unique License ID (“License ID”) to each Industrial Robot Controller within (2) Business Days of receiving the Activation Request.
B. Renewal
- Unless the Subscription is automatically renewed for a term set out in the original Order Form, the End User shall renew the Subscription as set out below.
- Where the End User is renewing a Subscription and the Subscription is being used for a Robotic Cell for which the End User has already obtained a Subscription, the End User shall send the Supplier an e-mail expressing a wish to renew the Subscription.
- The Supplier shall issue an invoice in connection with the renewal to the End User 20 (twenty) Business Days prior to the expiry date of the current Subscription.
- The End User shall pay any fees due to the Supplier within 10 (ten) Business Days from the date of the invoice and in accordance with the invoice terms.
- Within 2 (two) Business Days of receipt of the payment set out in the applicable invoices, the Supplier shall confirm to the End User that the Subscription has been renewed and activated.
- If no payment has been received as set out in paragraph 4 of Part B above, the current Subscription will not be renewed.
- The End User may request the Supplier to issue the invoice to renew the Subscription within twelve (12) months of the date of expiry of the Subscription. In such cases, if the End User does not pay for renewal within twelve (12) calendar months from the original Subscription expiry date, the Subscription will automatically terminate. Furthermore, in order to obtain a new Subscription, the Reseller shall send to the Supplier an Order Form (in the form set out in to this Agreement) to purchase a Renewal Period (or Renewal Periods) in accordance with the order process set forth in Part A above.
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