IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLATION:
This agreement ("Agreement") is made up of the following:
- the Order Confirmation (as defined below);
- the Support Policy; and
- these terms and conditions set out in clause 1 to clause 21.
If there is any conflict or ambiguity between the above, the higher document in the above list will prevail over the terms of any document below it.
This Agreement shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply even if such other provisions are submitted in a later document or purport to exclude or override the terms of this Agreement and neither the course of conduct between Parties nor trade practice shall act to modify this Agreement.
This Agreement is a legal agreement between the customer identified in the Order Confirmation (“you”) and SquaredUp Limited registered as a company in England and Wales with company number 07834869 at registered office address Abbey Place, 24-28 Easton Street, High Wycombe, Buckinghamshire, HP11 1NT, United Kingdom (“SquaredUp”) (each a "Party" and together the "Parties") for the use of the software described in the Order Confirmation(“Software”), technical support and maintenance services ("Support") and the associated media, printed materials and online or electronic documentation relating to the Software (“Documentation”). The order confirmation accompanying the Software license key (the “Order Confirmation”) shall form part of this Agreement. In addition to the Software, the Order Confirmation also sets out the fees payable in respect of the Software and Support("Fees"), the duration of the license ("License Term") and details of where SquaredUp's policy for providing technical support in relation to the Software can be found ("Support Policy").
Your order constitutes an offer to purchase the Software and Support in accordance with this Agreement. Your order shall only be deemed to be accepted when SquaredUp issues acceptance in the form of the Order Confirmation, at which point and on which date this Agreement shall come into existence. The Fees shall be due and payable whether or not you choose to install the Software. If you bought the Software from an authorised third party reseller ("Authorised Reseller"), please note that the Authorised Reseller has the right to enter into this Agreement as agent on our behalf. Any Fees or Support Fee shall be invoiced by, and payable to, Authorised Reseller unless SquaredUp notifies you otherwise.
1. Grant and scope of license
1.1 In consideration of you agreeing to abide by the terms of this Agreement, SquaredUp hereby grants to you a non-exclusive, non-transferable license (the "License") to use the Software and the Documentation for the License Term on the terms of this Agreement.
1.2 If any additional supplementary software including additional tools, modules or any patches or modifications relating to the Software are made available to you by SquaredUp after the release of the Software, such additions and modifications, where installed by you, shall form part of the Software and shall be subject to the terms of this Agreement and the License granted under this clause 1.
1.3 You may:
(a) download, install and use the Software for your internal business purposes only;
(b) install the Software on any number of computers reasonably required to achieve the desired performance and availability;
(c) allow the permitted number of Users (as specified in the Order Confirmation) to use the Software for your internal business purposes. For the purpose of this clause 1.3(c), "Users" shall mean an employee, consultant or other individual who benefits from the Software licensed to you;
(d) use any Documentation in support of the permitted use of the Software and make such copies of the Documentation as are reasonably necessary for its lawful use; and
(e) receive and use any free supplementary software or update of the Software incorporating "patches" and corrections of errors as may be provided by SquaredUp from time to time as part of the Support.
1.4 You shall be responsible for the acts and omissions of your users in relation to the Software and any breaches of the terms of this Agreement by them shall be deemed to be a breach by you.
2. Your undertakings
2.1 Where you select Software that is described as "Evaluation Software", you are permitted to use the Software for evaluation purposes only for the Evaluation Period, as set out in the Order Confirmation ("Evaluation Period"). You undertake not to use the Software for any purposes other than evaluation during the Evaluation Period. In respect of Evaluation Software, any references to the "License Term" in this Agreement shall be deemed to be references to such Evaluation Period.
2.2 Where you select Software that is described as either “Preview” or “Beta Release” you agree not to use it in a production environment where any malfunction may cause loss and/or damage to your systems, data or business.
2.3 Where you select Software that is described as “Test”, “Trial”, or “NFR” you agree not to use it in a production environment.
2.4 We may require you to update the Software, provided that the Software shall always meet the description of it we provided to you before you brought it, in all material respects. Where we require you to update the Software, you agree to install such update as soon as practicable on receipt of our request. We shall not be liable for any damage, loss or claim to the extent that they could have been avoided by installing the update.
2.5 Except as expressly set out in this Agreement or as permitted by any local law, you undertake:
(a) not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other software programs;
(d) not to disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software nor attempt to do any such things except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program;
(ii) is not unnecessarily disclosed or communicated to any third party without SquaredUp’s prior written consent; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) to control the use of the Software and ensure that your users use the Software in accordance with the terms of this Agreement;
(f) to include the copyright notice of SquaredUp on all entire and partial copies you make of the Software on any medium.
2.6 You must permit SquaredUp and its representatives, upon its reasonable request and written notice, to inspect and have access to any premises at which the Software or the Documentation is being kept or used, to the computer equipment located there, and to any records kept pursuant to this Agreement, for the purpose of ensuring that you are complying with the terms of this Agreement.
3. Intellectual property rights
3.1 For the purposes of this Agreement, “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may, now or in the future, subsist in any part of the world relating to SquaredUp owned by, licensed to or acquired by SquaredUp from time to time.
3.2 You acknowledge that all Intellectual Property Rights in the Software and the Documentation throughout the world belong to SquaredUp or its licensors, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of Agreement.
3.3 You acknowledge that you have no right to have access to the Software in source code form.
3.4 The integrity of the Software is protected by technical protection measures (“TPM”) so that the Intellectual Property Rights, including copyright, in the Software is not misappropriated. You must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.
3.5 SquaredUp undertakes at its own expense to defend you or, at its option, settle any claim or action brought against you alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party ("Claim") and shall be responsible for any reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against you as a result of or in connection with any such Claim. For the avoidance of doubt, this clause
3.5 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by you other than in accordance with the terms of this Agreement, use of the Software in combination with any hardware or software not supplied or specified by SquaredUp if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
3.6 If any third party makes a Claim, or notifies an intention to make a Claim against you, SquaredUp's obligations under clause 3.5 are conditional on you:
(a) as soon as reasonably practicable, giving written notice of the Claim to SquaredUp, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of SquaredUp (such consent not to be unreasonably withheld or delayed);
(c) giving SquaredUp and its professional advisers access at reasonable times (on reasonable prior notice) to your premises and officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable SquaredUp and its professional advisers to examine them and to take copies for the purpose of assessing and defending the Claim; and
(d) taking such action as SquaredUp may reasonably request (at SquaredUp's cost) to avoid, dispute, compromise or defend the Claim.
3.7 If any Claim is made, or in SquaredUp's reasonable opinion is likely to be made, against you, SquaredUp may at its sole option and expense:
(a) procure for you the right to continue to use the Software (or any part thereof) in accordance with the terms of this Agreement;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this Agreement immediately by notice in writing to you and refund any of the Fees paid as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof.
3.8 Clauses 3.5 to 3.7 constitute your exclusive remedy and SquaredUp's only liability in respect of Claims and, for the avoidance of doubt, are subject to clause 7.
4.1 For the purposes of this Agreement:
“Confidential Information” shall mean any information which is disclosed by one Party (or its Representatives) to the other (or that Party's Representatives), pursuant to, or in connection with, this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential and whether before or after the date upon which SquaredUp provide you with the Software), or which otherwise comes into the hands of either Party other than information which is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality); and
“Representatives” shall mean, in relation to a Party, its employees, officers, representatives or advisers.
4.2 Both Parties undertake that they shall not at any time during this Agreement or following its termination, for whatever reason, copy, use or disclose to any person any Confidential Information, except as permitted by this Agreement.
4.3 Either Party may disclose Confidential Information:
(a) to its Representatives who need to know such information for the purposes of carrying out its obligations or exercising its rights under this Agreement. Both Parties shall ensure that the Representatives to whom the Confidential Information is disclosed comply with this clause 4;
(b) where the Confidential Information has become public knowledge other than through the fault of the Party or a person to whom the Party has disclosed Confidential Information to in accordance with clause 4.3(a) above;
(c) where the Confidential Information was already known to the Party prior to its disclosure to it by the other Party as can be demonstrated from its written file material or other records and is not the subject of any restriction on disclosure imposed by a third party;
(d) the Confidential Information has been received from a third party who neither acquired it in confidence from either Party nor owed that Party a duty of confidence in respect of it; or
(e) as may be required by law, court order or any governmental or regulatory authority provided that the Party that is required to disclose such information shall, to the extent it is permitted to do so by applicable law, notify the other Party of the information to be disclosed and the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure must be made and shall take all reasonable action to avoid or limit such disclosure.
4.4 Neither Party shall use the Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement.
4.5 This clause 4 shall survive termination of this Agreement, however caused.
5.1 You shall pay the Fees (if any, as specified in the Order Confirmation) in advance in respect of the initial License Term when you purchase the Software. At the end of the initial License Term, the Agreement shall automatically renew for successive annual License Terms in accordance with clause 8.2 and the Fee as stated in the Order Confirmation issued in connection with such renewals shall be payable in advance in respect of the additional License Term. The Fees are non-refundable.
5.2 You shall pay each invoice submitted by SquaredUp:
(a) within 30 days of the date of the invoice; and
(b) in full without deduction or set off and in cleared funds to a bank account nominated in writing by SquaredUp, and time for payment shall be of the essence of the Agreement.
5.3 All amounts payable by you under this Agreement are exclusive of VAT which shall be chargeable where applicable in addition at the then current rate.
5.4 Without limiting any other right or remedy of SquaredUp, it reserves the right to charge interest on any overdue sums at the rate of 3% per annum above the base rate of the Bank of England accruing on a daily basis from the date the payment was due until the date of actual payment, whether before or after judgment. Interest shall be payable on demand.
5.5 SquaredUp reserves the right to increase the Fees in respect of each renewal in accordance with clause 8.2.
6.1 SquaredUp warrants that:
(a) except where the Software is Evaluation Software, Preview, Beta Release, Trial, Test or NFR Software, it will, for the period of 90 days following the date of the Order Confirmation (“Warranty Period”)and when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and the Documentation correctly describes the operation of the Software in all material respects; and
(b) the Support will be provided with reasonable care and skill subject to you providing reasonable assistance as necessary and otherwise comply with the terms of this Agreement (including payment).
6.2 You acknowledge that the Software is provided on an “as is” basis and that it has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
6.3 SquaredUp does not warrant or represent that the running of the Beta Release, Preview, Evaluation, Trial, Test or NFR Software will be uninterrupted.
6.4 You acknowledge that the Software may not be free of errors or bugs and you agree that the existence of any minor errors (or in the case of Preview, Beta Release, Evaluation, Trial, Test or NFR Software, any errors at all) shall not constitute a breach of this Agreement.
6.5 If, within the Warranty Period, you notify SquaredUp in writing of any defect or fault in the Software (which is not Evaluation Software, Preview, Beta Release, Trial, Test or NFR Software) in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Agreement, SquaredUp will, at its sole option, repair or replace the Software, provided that you make available all the information that may be necessary to assist SquaredUp in resolving the defect or fault, including sufficient information to enable SquaredUp to recreate the defect or fault.
6.6 Where you the Fees are inclusive of Support, subject to the payment of the applicable Fees (as applicable), you will be entitled to receive Support as set out in the Order Confirmation and our Support Policy.
6.7 If you notify us of any bugs and issues that you come across in relation to the Beta Release, Preview, Evaluation, Trial, Test or NFR Software this will assist us in the development of our software. Please note that the Intellectual Property Rights in any information or ideas communicated to us, unless otherwise agreed in writing, shall belong to us.
7.1 This condition sets out the entire financial liability of the Parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:
(a) any breach of this Agreement however arising;
(b) any use made or resale of the Software or the Documentation by you, or of any product or service incorporating any of the Software or the Documentation; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.2 Subject to clauses 7.4 and 7.5, neither Party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of income, business profits or contracts, anticipated savings, information, opportunity, goodwill or reputation or business interruption or damage to or corruption of data (in each of the forgoing cases) whether of a direct or indirect nature nor for any indirect or consequential loss or damage.
7.3 Subject to clauses 7.2, 7.4 and 7.5 SquaredUp’s maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 105% of the Fees paid in respect of the License Term during which the claim arose or £200, whichever is the greater.
7.4 This Agreement sets out the full extent of SquaredUp’s obligations and liabilities in respect of the supply of the Software, Documentation and Support. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on SquaredUp except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Software, Documentation and Support which might otherwise be implied into or incorporated in this Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
7.5 Nothing in this Agreement shall limit or exclude the liability of either Party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or any other liability which cannot be properly excluded by law.
8. Term and Termination
8.1 The Agreement shall commence on the date that the Order Confirmation is issued to you and shall continue for the initial License Term unless terminated in accordance with clauses 8.3 and 3.7.
8.2 Subject always to earlier termination in accordance with clauses 8.3 and 3.7, the Agreement shall automatically renew for further period of one year at the end of the initial License Term and after each additional License Term (each a "License Term") unless written notice is given by either Party not less than three months prior to the expiry of the License Term. Prior to the expiry of any current License Term, SquaredUp shall issue you with an Order Confirmation setting out the Fees, license keys and other relevant details for the next following additional License Term. You shall have a grace period of 30 days following the start of any additional License Term of such Order Confirmation to pay the Fees. If you fail to pay the Fees within that period, this Agreement shall automatically terminate at the end of that period and your license key shall expire and the Software will be automatically disabled.
8.3 Either Party may terminate this Agreement immediately on written notice if the other Party:
(a) commits a material or persistent breach of this Agreement and fails to remedy that breach (if remediable) within 14 days after the service on you of written notice requiring you to do so;
(b) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986 ("IA 1986") as if the words "it is proved to the satisfaction of the court" did not appear in section 123(1)(e) or 123(2) of AI 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.
8.4 Upon termination or expiry of this Agreement for any reason:
(a) all rights granted to you under the License in clause 1 shall cease;
(b) you must cease all activities authorised by this Agreement; and
(c) you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to SquaredUp (at SquaredUp’s option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to SquaredUp that you have done so.
9. Transfer of rights and obligations
9.1 You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent.
9.2 SquaredUp may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of SquaredUp’s rights or obligations arising under it, at any time during the term of the Agreement.
All notices given by you to SquaredUp must be given to the postal address given at the head of this Agreement or such other address as notified to you from time to time. SquaredUp may give notice to you at either the email or postal address that you provided to it or its representative when purchasing the Software. Notice will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
11. Force Majeure
11.1 SquaredUp will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Agreement that is caused by a Force Majeure Event.
11.2 A Force Majeure Event includes, but is not limited to means acts, events, omissions or accidents beyond SquaredUp’s reasonable control, including but not limited to acts of God, extreme adverse weather conditions or natural disaster, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, nuclear, chemical or biological contamination or sonic boom, compliance with any law, regulation or directive, fire, explosion or accidental damage, failure of plant machinery, machinery, computers or vehicles, any labour dispute, including (but not limited to) strikes, industrial action or lockouts, non-performance by suppliers or subcontractors and interruption or failure of utility or transport service.
12.1 If SquaredUp fails, at any time during the term of this Agreement, to insist upon strict performance of any of your obligations under this Agreement, or if SquaredUp fails to exercise any of the rights or remedies to which it is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by SquaredUp of any default shall not constitute a waiver of any subsequent default.
12.2 No waiver by SquaredUp of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
13. Telemetry Data
13.1 For the purposes of this Agreement “Telemetry Data” shall mean non-personally identifiable information related to the usage of the Software.
13.2 SquaredUp may collect Telemetry Data relating to your use of the Software in order to maintain, improve, or analyse the effectiveness of the Software. You acknowledge that SquaredUp may freely use any non-personal Telemetry Data that does not identify You or any of your Users and provided that the Telemetry Data is used exclusively by SquaredUp and is not at any time to be shared with or used by external third parties.
13.3 If you have paid a Fee for the Software then you may optionally disable the sending of Telemetry Data. Instructions on how to disable sending Telemetry Data can be obtained by request to [email protected]. If you are using a free edition of the Software then SquaredUp reserves the right to prevent disabling sending Telemetry Data.
14.1 For the purposes of this Agreement “GDPR” shall mean the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
14.2 Both Parties shall protect personal data in accordance with Article 32 of the GDPR.
15. Export Control
15.1 Neither Party shall 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"), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
15.2 Each Party undertakes: (a)contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and (b)if requested, to provide the other Party with any reasonable assistance, at the reasonable cost of the other Party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
16. Modern Slavery and Anti-Bribery
16.1 In performing its obligations under this Agreement, each Party shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015.
16.2 Each Party shall, and shall procure that any person associated with it performing services in connection with this Agreement shall comply with all applicable laws, statutes, regulations, codes and sanctions relating to anti-bribery and anti-corruption in England, including but not limited to the Bribery Act 2010.
You acknowledge that SquaredUp may reference your name and use your logo and trademarks to indicate that you are a SquaredUp customer in its business development and marketing efforts and materials (both printed and online), including without limitation its website.
If any of the terms of this Agreement are determined by any competent authority to be invalid, illegal or unenforceable to any extent, such term, condition or provision will to that extent be deemed deleted and the remaining provisions shall continue in full force and effect.
You acknowledge and agree that SquaredUp may change or amend the Software or the terms of this Agreement at any time. SquaredUp shall notify you of any such changes or amendments. Such notice may include notice published on SquaredUp's website detailing where any such variation can be found. Any variation to this Agreement shall be binding on you immediately upon notice to you. If you do not agree to the variation you must cease using the Software immediately.
20. Entire agreement
20.1 This Agreement constitutes the whole agreement between the Parties and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of the Software and Documentation.
20.2 The Parties each acknowledge that, in entering into this Agreement, neither of them rely on any statement, representation, assurance or warranty (“Representation”) of any person (whether a Party to this Agreement or not) other than as expressly set out in this Agreement or those documents.
21. Law and jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties submit to the exclusive jurisdiction of the English courts.