Software Licence and Services Agreement
Version 2.2, October 2021
Parties and Agreement
These terms and conditions (“SLSA”) together with an Order Form (as defined below) form a separate legal agreement between the Customer and Provar Limited (a company incorporated in England with company number 08999736) (“Provar”), which governs the Customer’s (and its Affiliate’s) licence and use of the Software (as defined below) and the provision of associated Services (“this Agreement” or “the Agreement”).
1. Definitions and Interpretation
1.1 In this SLSA:
“Affiliates” means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time;
“Billing Period” is a period of time as specified in the Order Form, and can be “Monthly”, “Quarterly”, “Annual” or “One Off for Initial Term”. The first Billing Period for a Product starts on the Start Date for that Product, and subsequent Billing Periods for a Product start on the expiry or the previous Billing Period for that Product (unless its Product Term has ended). Where the Billing Period is stated to be “One Off for Initial Term” then the first Billing Period lasts for the Product Initial Term for the relevant Product.
“Business Day” means a day other than a Saturday or Sunday;
“Customer” has the meaning given to it in the Order Form;
“Customer User” means an individual using a Software Product for the benefit of the Customer or an Affiliate of the Customer;
“Fees” means all Product Fees;
“Intellectual Property Rights” or “IPRs” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Order Form” means an order form validly executed by the Customer and Provar that refers to this SLSA, and as used in this Agreement, and “the Order Form” refers to the relevant Order Form that created this Agreement;
“parties” means Provar and the Customer, and each is a “party”;
“PoV Product” is a Product where: (i) the relevant Product Row is marked, or includes the term, “PoV”, “POV”, “Proof of Value”, “PoC”, “POC”, “Proof of Concept”, “Trial”, “Evaluation”, or (in each case) anything similar; or ii) where the relevant Product Fees are zero (or equivalent, e.g. “FOC”).
“Product” means a software licence, or service, or set of services, (in each case) as described in column one of a Product Row;
“Product Fees” means for a Product, the fees payable for that Product as set out in its Products Row, but subject to change in terms of Clause 12.6 below;
“Product Initial Term” means for a Product, a period starting on its Start Date and continuing: i) for the duration of any “Initial Term”; or ii) until the Initial Term end date (in each case) for that Product as set out in its Products Row;
“Product Row” means a row in the Products Table (other than the row(s) with column headings or a row starting with the word “Total”);
“Product Term” means for a Product, the Product Initial Term, plus (where applicable) any Renewal Period under Clause 12.2 below;
“Products Table” the table under the heading “Products Under this Order Form” of the Order Form;
“Services” means the services listed in column one of the Products Table, and note that those services may be part of a software licence and support/service bundle;
“Signature Date” means the date of last signature of the Order Form;
“Software” means the Software Products. ;
“Software Product” means an item of software listed in column one of a Products Row, and note that that software may be part of a software licence and support/service bundle;
“Start Date” for a Product, means: (i) the “Start Date” for that Product as specified in the relevant Products Row, or (ii) where that “Start Date” is blank the “Start Date” for the preceding Product Row, or (iii) where no such “Start Date” appears in a preceding Product Row means the Signature Date;
“Third Party Software” means software that is included with (or forming part of) the Software, and in respect of which Provar is not the owner of all of the copyrights protecting that software, and note that Third Party Software may include open source software;
“Update” means a software maintenance update, patch or bug-fix that corrects faults, adds functionality or otherwise amends the Software but which does not constitute an Upgrade; and
“Upgrade” means a version or release of software intended to have new or improved functionality which from time to time is publicly marketed and offered for purchase by Provar in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
1.2 A term that is defined in this SLSA, and that is used in the Order Form, will have the meaning given to in this SLSA unless expressly stated otherwise in the Order Form.
1.3 Unless the context otherwise requires in this Agreement: (i) clause, paragraph or other headings in this SLSA are included for convenience only and shall have no effect on interpretation; (ii) a reference to a ‘party’ includes that party’s successors and permitted assigns; (iii) words in the singular include the plural and vice versa; (iv) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’, ‘for example’, ‘e.g.’, or (in each case) any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; (v) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; (vi) a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction; (vii) references to times of day are to London UK time, and references to a date shall be such date calculated using London UK time; (viii) amounts in respect of a period of time may be pro-rated on a daily basis for any shorter period of time; and (ix) a reference to an “employee” of a person includes temps, agency workers, and/or contractors (in each case) engaged by that person, and the individuals providing services to that person in relation to any temporary worker contract or contractor worker contracts (or, in each case, any similar contract).
2. Delivery and Installation
2.1 Provar shall make the Software available to the Customer.
2.2 Provar shall notify the Customer when a Software Product is ready to be downloaded and shall provide all reasonable instructions, including any necessary activation codes or licence keys. It is the Customer’s responsibility to ensure that its computer system and network connection is capable of downloading the Software.
2.3 Unless otherwise agreed in writing, the Customer shall be responsible for installing the Software in accordance with the instructions provided by Provar.
3.1 Subject to the terms of this Agreement, and provided the Customer pays the Fees when due and in accordance with this Agreement, Provar hereby grants Customer a non-exclusive, non-transferable, non-sub-licensable (except as provided in Clause 3.2 below), limited licence to install and use each Software Product during its Product Term , but that licence is subject to the caps/restrictions on usage set out in Clauses 3.4 and 3.5 below (in this Clause 3 each a “Licence”).
3.2 Each Licence includes a right for the Customer to grant sub-licenses to its Affiliates subject to any restriction set out in the Order Form. The Customer shall: (i) be liable for the acts and omissions of such Affiliates in relation to the Software under this Agreement as if they were its own (and if a Customer Affiliate does an act, that if performed by the Customer would be a breach of this agreement by the Customer, then that shall be deemed to be a breach of this agreement by the Customer); and (ii) procure that each Affiliate using the Software under this Agreement is aware of, and complies with, the obligations and restrictions imposed on the Customer under this Agreement, including all obligations and restrictions relating to record keeping, audits and installation or use of the Software and Provar’s confidential information.
3.3 Each Licence includes the right for the Customer (and its sub-licensed Affiliates) to: i) use the relevant Software on different devices and by different users (subject to any geographical, business use or other restrictions stipulated in the Order Form); and ii) to install the relevant Software within a virtual (or otherwise emulated) hardware system provided that the use of the Software and the virtual machines are run on hardware owned by or leased to the Customer (and use on any other hardware is not licensed under a Licence).
3.4 If a Product Row specifies that it is for a “Developer Licence”, then the Customer shall not permit the number of Customer Users simultaneously or concurrently running or using (in all cases) the relevant Software to exceed the number of Developer Licenses purchased by the Customer as specified in that Product Row. Any use by or on behalf of the Customer of that Software in excess of that number is not licensed under the relevant Licence.
3.5 If a Product Row specifies that it is for an “Execution Licence”, then the Customer shall not permit the number of testing scripts being simultaneously executed via a remote node (in all cases) by the relevant Software to exceed the number of Execution User Licenses purchased by the Customer as specified in that Product Row. Any use by or on behalf of the Customer of that Software in excess of that number is not licensed under the relevant Licence.
3.6 Each Licence is subject to the “Restrictions” identified in the Order Form. Any use of the Software in contravention of such a “Restriction” is not licensed under a Licence.
3.7 Each Licence is subject to a restriction that the Software can only be used for the purposes of testing Salesforce.com instances and/or configurations that are to be used by the Customer or an Affiliate of a Customer. Any use of the Software in contravention of this restriction is not licensed under a Licence.
3.8 If i) a Product is a PoV Product; or ii) a licence to any other non-production version of Software has been selected, then: a) the Licence for the relevant Software is restricted to installation and use only to review, demonstrate and evaluate the relevant Software and for a limited time period as specified in an Order Form, b) the version of the relevant Software provided by Provar may have limited features; and c) the Customer shall not install or use the relevant Software for any commercial purpose whatsoever, or use that Software for live testing of a current software development project (and any such installation and/or use is not licensed under the Licence for the relevant Software).
3.9 The Customer may make backup copies of the licensed Software for its lawful use. The Customer shall record the number and location of all copies of the Software that it (or an Affiliate) makes and take steps to prevent unauthorised copying.
3.10 Any use of the Software by or on behalf of the Customer or an Affiliate of the Customer, and that is not expressly licensed under this Agreement, is a material breach of this Agreement.
4. Licence Restrictions
4.1 Except as expressly permitted under this Agreement or by applicable law, the Customer shall not: (i) reverse engineer, decompile, disassemble or separate for use on more than one computer, place for distribution, sale, or resale as individual creations by the Customer, the Software and/or its constituent parts; (ii) alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form; (iii) rent, lease, or sub-license the Software (other than the sub-licensing permitted under Clause 3.2); (iv) unless otherwise expressly agreed in a separate written agreement between the Customer and Provar (a) use, or permit the use of the Software on a timeshare or service bureau basis, (b) host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason; or (c) create derivative works based upon the Software; or (v) publish or share any views or data about the performance of any Software, including any comparison and/or benchmarking against other software products. For the purpose of this Clause an employee (as defined in Clause 1.3 above) of the Customer or a Customer Affiliate is not a “third party”.
4.2 The Software may contain technological measures that, alone or working in conjunction with Provar computer servers, are designed to prevent unauthorised use of the Software (collectively, “Authentication System”), and the Customer agrees not to interfere with the Authentication System.
4.3 Nothing in this Agreement transfers, or creates an obligation to transfer, any IPR. Other than as expressly set out in this Agreement, nothing in this Agreement licences, or creates an obligation, to license, any IPR.
5.1 The Customer will pay the Fees to Provar. Without prejudice to the generality of the foregoing, for the “Subscription Items” specified in the Products Table, the Customer will pay to Provar the “Fees per Billing Period” for the relevant Product for each “Billing Period” (that commences during the relevant Product Term).
5.2 The Fees exclude all VAT or any relevant local sales taxes, use, excise, import or export, value added, governmental permit fees, licence fees, and customs for which the Customer shall be responsible. If the Customer is legally obliged under applicable tax law to withhold any amount of any payment to Provar, then the amount of the payment to Provar shall be automatically increased to totally offset such tax, so that the amount actually remitted to Provar, net of all taxes, equals the amount invoiced or otherwise due. The Customer will promptly furnish Provar with the official receipt of payment of these taxes to the appropriate taxing authority. The Customer may provide Provar with a certificate of exemption acceptable to an applicable taxing authority.
5.3 Provar may invoice the Customer for Product Fees as described in the Order Form.
5.4 The Customer shall pay such invoices within thirty (30) calendar days from the date on the invoice (unless otherwise agreed in the Order Form).
5.5 The Customer must pay the undisputed portion of any disputed invoice pending resolution of any dispute. A dispute over one invoice shall not entitle the Customer to delay or dispute payment in respect of another invoice or Agreement.
5.6 If the Customer fails to make any payment due to Provar under this Agreement by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.1 Provar will provide the Services described or included in a Product Row, during the relevant Product Term.
6.2 Any supplemental software code or related materials that Provar provides to the Customer as part of the Services, as an Update, as an Upgrade, or otherwise, is to be considered part of the Software and is subject to the terms and conditions of this Agreement.
6.3 Provar will provide the Services with reasonable skill and care.
6.4 If an individual performing the Services (each a “Provar Person”) works at/from the Customer’s premises or is given access to one or more Customer’s systems, then Provar shall ensure that such Provar Person shall abide by the applicable and reasonable written policies and procedures of Customer in relation to those premises and/or those systems (in each case) as made know to Provar or the relevant Provar Person.
6.5 Any one-off or non-recurring services described in the Products Table (including any configuration services, professional services, and/or initial configuration services) must be used by the Customer no later than the date 12 months after the Signature Date. Provar has no obligation to provide those Services after that date (irrespective of whether the Customer has paid for those Services or not).
7. Updates and Upgrades
7.1 Provar will provide a free Update notification service for a Software Product during: (i) the Warranty Period; and (ii) during any period that Provar provides support (or similar) for that Software Product (as such period is specified in, or determined in accordance with, the Products Table). An Update notification service may use the Customer’s internal network and Internet connection for the purpose of transmitting license-related data to a Provar-operated Update notification server at appropriate intervals and determine if there is any Update available for the Software and notify the Customer of its availability and will provide the Customer with any such Updates.
7.2 The Customer shall install all Updates as soon reasonably practicable after receipt of the notification under Clause 7.1 and shall install any Upgrades as soon as reasonably practicable after they are made available to the Customer.
7.3 Provar shall have no obligation to support: i) any Software in respect of a fault which has been remedied in a previous Update or Upgrade that has been made available to the Customer; or ii) in respect of Software that has been discontinued.
8. Limited Warranty and Disclaimer
8.1 Provar warrants that, during the Warranty Period (as defined in the next sentence) the Software will perform in substantial conformance with the documentation and/or specification supplied with the Software. The “Warranty Period” is a period of 90 days starting on the earliest “Start Date” in the Order Form, but excluding any Start Date: i) for any PoV Product; ii) for a Product that is only for Services.
8.2 If the Customer receives any Update or Upgrade of the Software under this Agreement during the Warranty Period, such Update or Upgrade will be covered under the warranty at Clause 8.1 for the remainder of that Warranty Period, but that Warranty Period will not be restarted or extended as a result of any Update or Upgrade to the Software.
8.3 Provar provides no remedies or warranties, whether express or implied, for any Third Party Software (including any open-source software). Third Party Software (including any open-source software), is provided “as is”.
8.4 Except as expressly set forth in Clauses 6.3 and 8.1, Provar and its suppliers disclaim, and exclude from the Agreement, all warranties, conditions and/or representations, whether express, implied, or otherwise, including warranties of merchantability or fitness for a particular purpose. Provar does not warrant that the Software is error-free or will operate without interruption. The Customer accepts that the Software is not designed, intended or licensed for use in hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. Provar specifically disclaims, and excludes from the Agreement, any: i) licence to use; and ii) any express or implied warranty of fitness (in each case) for such purposes.
9. Exclusive Remedy
9.1 If there is a breach of the warranty under Clause 8.1, then the Customer’s exclusive remedy for that breach is to raise a support case on Provar Support website http://www.provartesting/support including a description of the problem. Provar shall then, at Provar’s option, do one of the following: (a) repair the Software; (b) replace the Software; or (c) terminate this Agreement immediately by notice in writing to the Customer and refund any Fees paid by the Customer as at the date of termination which relate to the period after that termination (calculated pro rata on a daily basis) on return of the Software and all copies thereof. Those Provar obligations are conditional on the Customer providing all information reasonably requested by Provar in order to allow Provar to analyse or resolve the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Provar to re-create the defect or fault.
9.2 The warranty in Clause 8.1 is subject to the Customer complying with its obligations under, and using the Software in accordance with, this Agreement and shall not apply to the extent that any error in the Software arises as a result of: (i) the Software being altered or modified in any way by the Customer without the written consent of Provar; (ii) incorrect operation or use of the Software; (iii) installation or use of the Software other than for the purposes for which it is intended; (iv) modification or alteration of the Software without the written consent of Provar; (v) installation or use of the Software with other software or on equipment with which it is incompatible (unless Provar recommended or required the use of that other software or equipment); (vi) attempted repair, rectification or maintenance by any person other than Provar or a third party authorised by Provar; (vii) failure to notify Provar of any error within a reasonable period of time of it first occurring; (viii) failure to install any Update or Upgrade recommended and made available by Provar; or (ix) use of the Software that is not licensed under this Agreement.
9.3 Subject to Clause 10.5, the remedies in Clauses 9.1 and 14 are the sole and exclusive remedy (howsoever arising, whether in contract, tort, negligence or otherwise) available to the Customer for: i) any breach of Clause 8.1; ii) or for any other error or defect in, defective performance of, and/or inability to use (in each case) the Software or any part of it.
10. Limitation of Liability
10.1 The extent of each party’s liability under or in connection this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this Clause 10.
10.2 Subject to Clause 10.5, neither party shall be liable for consequential or indirect losses.
10.3 Subject to Clause 10.5, neither party shall be liable for any of the following (whether direct or indirect): (i) loss or corruption of data; (ii) loss or corruption of software or systems; (iii) loss or damage to equipment; (iv) loss of use; (v) loss of production; (vi) loss of profit (but not loss of any licence revenue or potential licence revenue by Provar); and/or (vii) harm to reputation or loss of goodwill.
10.4 Each party’s total liability to the other for damages for any cause whatsoever under or in relation to this Agreement will be limited to the amount paid or payable by the Customer under this Agreement. As used in this Clause “payable” means validly invoiced by Provar but not yet paid by the Customer.
10.5 Notwithstanding Clauses 10.3 and 10.4, nothing in this Agreement excludes or limits a party’s liability (i) for death or personal injury caused by negligence; (ii) for fraud or fraudulent misrepresentation; (iii) for any other liability which may not be excluded by applicable law; (iv) for an infringement of a party’s Intellectual Property Rights; (v) for the Customer’s breach of Clauses 3, 4, 11, 13 or 14; (vi) for a breach of Clause 18 (Confidentiality and Publicity); or (vii) to pay Fees or interest on the Fees. Further the amount of any such liability shall be ignored when calculating whether the liability cap set out in Clause 10.4 has been reached or exceeded.
11. Third Party Software
11.1 The Software may contain Third Party Software (including open-source software) which requires notices and/or additional terms and conditions. Provar shall make available such required Third Party Software notices and/or additional terms and conditions in a file called thirdparty.txt in the Software installation folder. By accepting this Agreement, the Customer is also accepting the additional terms and conditions, if any, set forth therein and shall comply with such terms and conditions.
12. Term, Renewal, Suspension and Termination
12.1 This Agreement shall come into force on the Signature Date and, unless terminated earlier in accordance with the provisions of this Agreement, it shall continue in force until the end of the last to expire of the Product Terms (the “Term”).
12.2 Subject to the exclusions in Clause 12.3, each Product Term shall continue for the duration of the Line Term Initial Term and, thereafter, shall be automatically extended for successive periods of twelve (12) months (each a “Renewal Period”), unless:
12.2.1 either party notifies the other party of termination of that Product Term, in writing, at least thirty five (35) days before the end of the then current Product Term; or
12.2.2 this Agreement (or the relevant Product Term) is otherwise terminated in accordance with the terms of this Agreement.
12.3 The extension of a Product Term under the provisions of Clause 12.2 will not apply where the relevant Product is under the heading “One Off Items” in the Products Table.
12.4 If for a Product, (i) the “Billing Period” is stated to be “One Off for Initial Term”, and (ii) the duration of a Renewal Period for that Product under Clause 12.2 is less that the duration of its Product Initial Term, then during each Renewal Period for that Product: (a) the “Billing Period” for that Product is changed to “Annual”; and (ii) the then current “Fees Per Billing Period” shall be adjusted: i) to an annual amount by dividing it by the number of years in that Product Initial Term; and ii) that annual amount shall be adjusted in accordance with Clause 12.6 below.
12.5 Provar shall use reasonable endeavours to notify the Customer on or around ninety (90) days before the end of the then current Product Term that the term of the Product Term is to be automatically renewed/extended. That notification will include details of any increase in Fees for the Product in accordance with Clause 12.6. below.
12.6 The Product Fees for a Product may be increased by Provar for a Renewal Period (the “Price Increase Renewal Period”), provided that increase is not more than 7% for each period of 12 months between: i) the relevant Product’s Start Date (or if later the first day of the preceding Renewal Period for that Product); and ii) the first day of the Price Increase Renewal Period.
12.7 Either party may terminate this Agreement at any time by giving notice in writing to the other party if: (i) the other party commits a material breach of this Agreement and such breach is not remediable; or (ii) the other party commits a material breach of this Agreement which is not remedied within thirty (30) Business Days of receiving notice of such breach. For the purposes of this clause, and without prejudice to other breaches being material breaches: i) a breach of Clause 4 is material breach that cannot be remedied; and ii) a failure to pay Fees in accordance with this Agreement is a material breach that can be remedied.
12.8 If any material breach relates to an individual Product only, then the non-breaching party may elect to terminate that Product only, and in that event the relevant Product Term will be deemed to have ended.
12.9 Without prejudice to any other remedy available to Provar, if the Customer is in breach of its obligation to pay amounts due under Clause 5, then provided Provar has complied with Clause 12.11 Provar may suspend: i) the Customer’s licence to use the Software, and the Customer’s use of the Software; and ii) the provision of the Services (in each case) until such breach is remedied.
12.10 Without prejudice to any other remedy available to Provar, if the Customer is in breach of any of the terms of this Agreement, then provided Provar has complied with Clause 12.11 Provar may suspend: i) the Customer’s licence to use the Software, and the Customer’s use of the Software; and ii) the provision of the Services (in each case) until such breach is remedied.
12.11 Provar shall give the Customer a minimum of 7 days’ notice prior to exercising its rights under Clauses 12.9 or 12.10 (thus allowing the Customer an opportunity to remedy the relevant issue prior to suspension). Provar shall notify the Customer of a suspension pursuant to Clause 12.9. Suspension under Clauses 12.9 or 12.10 : (i) shall not place Provar in breach of Provar’s obligations to license and/or provide the Software and/or Services, and (ii) shall not relieve the Customer from paying the Fees in accordance with the terms of the Agreement, and (iii) any such suspension shall continue until the Customer has remedied its breach to Provar’s satisfaction. Provar shall use reasonable endeavours to provide the Customer with such information that Provar is aware of to expedite the Customer’s remedy of any breach that leads to such a suspension.
12.12 A party may terminate this Agreement at any time by giving notice in writing to the other party if the that other party: (i) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or (ii) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
13. Consequence of Termination
13.1 Immediately on termination or expiry of this Agreement (for any reason),
13.1.1 the licences and rights granted by Provar shall terminate; and
13.1.2 the Customer shall: (i) stop using and uninstall the Software; (ii) destroy and delete or, if requested by Provar, return any copies of the Software; and (iii) immediately pay to Provar any Fees then due to Provar and Fees that would become due to Provar (in each case) under this Agreement (assuming that there are no further Renewal Periods); and
13.1.3 Provar shall destroy and delete any copies of Customer confidential information in Provar’s possession or control.
13.2 The Customer shall ensure that it backs up its data regularly and extracts it from the Software prior to the termination or expiry of an Order Form. Provar shall not be obliged to provide the Customer with any assistance extracting or recovering data.
13.3 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination. Without prejudice to the foregoing the provisions of the following Clauses of this SLSA shall survive termination or expiry of the Agreement: 1; 5 (in respect of amounts: (i) invoiced prior to that termination or expiry, and/or (ii) that can be invoiced on, or that become payable at or on, that termination or expiry); 8.3; 8.4; 10; 13; 15.1; 16; 17; 18; and 20.
14. Intellectual Property Rights and Indemnity
14.1 The Customer acknowledges that all Intellectual Property Rights in the Software and Updates and Upgrades (in each case) belong to, and shall belong to, Provar or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement. Provar acknowledges that all Intellectual Property Rights in test scripts created by a Customer User using the Software, or data and/or reports generated by running those test scripts, shall (in each case) belong to, the Customer, and Provar shall have no rights in such items.
14.2 The Customer acknowledges that all Intellectual Property Rights developed during the course of the Services belong and shall belong to Provar. The Customer shall have no rights in or to such Intellectual Property Rights other than for the purpose of receiving and using the Software and receiving the Services in accordance with this Agreement.
14.3 Provar undertakes at its own expense to defend the Customer against (or, at Provar’s option, settle) any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK or US Intellectual Property Rights of a third party (each a “Claim”) and Provar shall indemnify the Customer from and against any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, the indemnity in this Clause 14.3 shall not apply where the Claim in question is attributable to or caused by: (i) possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Agreement, (ii) use of the Software in combination with any hardware or software not supplied or specified (in each case) by Provar, or iii) use or possession of a non-current release of the Software; iv) the possession or use of any Third Party Software or through the breach of any terms and conditions relating to any Third Party Software by the Customer.
14.4 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, then Provar’s obligations under Clause 14.3 are conditional on the Customer: (i) as soon as reasonably practicable, giving notice of the Claim to Provar, specifying the nature of the Claim in reasonable detail; (ii) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Provar (such consent not to be unreasonably conditioned, withheld or delayed); (iii) giving Provar and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer that relate to the Software, so as to enable Provar and its professional advisers to examine them and to take copies (at Provar’s expense) for the purpose of assessing the Claim; and (iv) subject to Provar providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Provar may reasonably request to avoid, dispute, compromise or defend the Claim.
14.5 If any Claim is made, or in Provar’s reasonable opinion is likely to be made, against the Customer, then Provar may at its sole option and expense: (i) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this Agreement; (ii) modify the Software so that it ceases to be infringing; (iii) replace the Software with non-infringing software; or (iv) terminate this Agreement immediately by notice in writing to the Customer, and refund any of the Fees paid by the Customer as at the date of termination which relate to the period after that termination (calculated pro rata on a daily basis); or (v) terminate any Product Row affected, or potentially affected, by such Claim or likely claim immediately by notice in writing to the Customer, and refund any of the relevant Product Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the relevant Product to the date of termination). However, the payment of refunds under the previous sentence is conditional on the Customer’s return of the Software (or in the case of a termination of a specific Product Row return of the Software licensed under that Product Row) and all copies thereof. For the purposes of sub-clause v) of the previous sentence a termination of a Product Row will mean that the relevant Product Term will be deemed to have ended.
14.6 This Clause 14 constitutes the Customer’s exclusive remedy, and Provar’s only liability, in respect of Claims. The provisions of Clause 10 apply to liability under this Clause 14.
15. Information Security
15.2 Provar does not access any customer information unless requested to do so as part of customer requested Services.
15.3 If the Customer grants access to its computer systems or network to Provar in order for Provar to perform the Services, it is the Customer’s responsibility to limit the access of any Provar representative to any Customer sensitive or personal data.
16. Entire Agreement
16.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
16.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. However, nothing in this Agreement excludes any remedy in respect of fraudulent misrepresentation.
17.1 Any notice given to a party under or in connection with this Agreement shall be delivered by email. Any such notice given by the Customer to Provar shall be sent to [email protected] and any notice given by Provar to the Customer shall be sent to the email address for notices specified in the Order Form (or if no such email address is specified, or if that email address is generating rejection notices, then to either : i) any email address specified in the Order Form; ii) any email address previously used by the Customer to communicate with Provar; or iii) any physical address for the Customer specified in the Oder Form).
17.2 Any notice shall be deemed to have been received at the time of transmission of the email.
17.3 This Clause 17 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. Confidentiality and Publicity
18.1 A party (“the Recipient”) shall, and shall ensure its Permitted Disclosees shall, during the term of this Agreement and thereafter:
(i) keep confidential;
(ii) only use for a Permitted Purpose ;
(iii) not disclose to any third party (except the Recipient’s Permitted Disclosees, and then only to the extent such disclosure to such a Permitted Disclosee is required or is reasonable for a Permitted Purpose); and
iv) use reasonable endeavours to avoid unauthorised access to its copies of,
any information of a confidential nature (including trade secrets and information of commercial value) which may become known to the Recipient or a Recipient Disclosee from the other party (the “Discloser”) or one of the Discloser’s Permitted Disclosees, under or in relation to the subject matter of this Agreement and which relates to the Discloser or any of its Affiliates. For the purposes of this Clause 18, and without limitation: i) the Software; and iii) any documentation describing the Software that is provided by Provar or a Provar Permtted Disclosee (in each case), shall be deemed to be information of a confidential nature disclosed by Provar to the Customer and which relates to Provar.
18.2 For the purposes of this Clause 18 “Permitted Purposes” are: (i) performing the Recipient’s obligations under this Agreement; (ii) managing that performance; and/or (iii) exercising and/or enforcing a Recipient’s right under this Agreement. For the purposes of this Clause 18 a Recipient’s “Permitted Disclosees” are : (i) its Affiliates; ii) its employees and its Affiliate’s employees; (iii) its professional advisors; and (iv) (where Provar is the Recipient) its suppliers.
18.3 The provisions of Clause 18.1 shall not apply to any information which:
(i) is in the public domain, where such information has not come into the public domain through a breach of this Agreement;
(ii) the person holding that information (in this Clause 14, the “holder”) can show that such information was known to the holder before receipt under or in relation to this Agreement, and had not previously been obtained by the holder under an obligation of confidence; or
(iii) the holder obtained, or has available, such information from a source other than Provar, the Customer, a Provar Permitted Disclosee and/or a Customer Permitted Disclosee in each case without breaching any obligation of confidence.
18.3.1 the holder can show such information was independently developed by it without access to information disclosed under or in relation to this Agreement).
18.4 The disclosure of information: (i) as required by law, or any government, and/or any regulatory authority; or (ii) as part of a Court case to enforce rights under this Agreement, is not a breach of Clause 18.1.
18.5 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
18.6 If the Customer provides such consent under Clause18.5,then the Customer agrees to be identified as a customer of Provar, and : (i) Provar may refer to the Customer by name, trade name and trade mark, if applicable, and (ii) Provar may briefly describe the Customer’s business in Provar’s marketing materials and website; and (iii) the Customer hereby grants Provar a licence to use’s name and any of the Customer’s trade names and trademarks solely to exercise the rights granted to Provar pursuant to this Clause18.6.
19. Compliance with law and export control
19.1 Each party shall comply with all applicable laws and shall maintain such authorisations and approvals as required from time to time to perform their obligations under or in connection with this Agreement.
19.2 The parties shall comply with all applicable laws, rules, and regulations governing export of goods and information that apply to the Software, and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Software to any country prohibited by any applicable export laws or regulators (including, without limitation, the laws of the United States of America) or for which an export licence or other approval is required, without first obtaining such licence or other approval. The Customer shall be solely responsible for ensuring its access, importation or use of the Software complies with all export laws.
20.1 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
20.2 Except as expressly permitted in in another clause of this Agreement (including Clause 3.2), neither Party shall assign, transfer, or sub-licence, any of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without the other Party’s written consent (such consent not to be unreasonably withheld or delayed). However, a Party (the “Transferor”) may by notice to the other Party transfer the Transferor’s entire rights, obligations and liabilities (including accrued liabilities) in each case under or in relation to this Agreement to a purchaser of more than 50% of the assets (by value) of the Transferor.
20.3 The Customer shall pay all sums that it owes to Provar under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
20.4 Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any event outside of its reasonable control.
20.5 The parties are independent and are not partners, or principal and agent, and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
20.6 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
20.7 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
20.8 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
20.9 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
20.10 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given
20.11 If there is a conflict between the terms contained in the main body of this SLSA and any Order Form, the terms of the Order Form shall prevail.
20.12 Except as expressly provided in this Agreement, each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
20.13 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 of its provisions.
20.14 Provar may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement, provided that it gives prior notice to the Customer.
20.15 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.16 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).