(c) 2007-2023 Collabit Software Ltd
Collabit Software Licence and Usage Agreement
This Software Licence and Usage Agreement is a legal agreement between you (either individual or entity) and Collabit Software Limited of 4th Floor, Davis House, 69-77 High Street, Croydon, CR0 1QQ. Hereinafter referred to as (“Collabit”). By installing, copying, or otherwise using the Licensed Product, you agree to be bound by the terms of this agreement. If you do not agree to the terms of this agreement you may not use Collabit.
Terms and Conditions
As used in this Agreement, the following terms shall have the following meanings:
1.1 “Confidential Information” shall mean any non-public data, information and other materials regarding the products, services or business of a party (and/or, if either party is bound to protect the confidentiality of any Third Party’s information, of a Third Party) provided to either party by the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, Confidential Information about Collabit includes the software and all source code, source documentation, inventions, know-how, and ideas, updates and any documentation and information related to the Collabit Software Licence.
1.2 “End-User” shall mean employees or consultants of You or other end-users who have registered and been identified by You to receive a password in order to access the Collabit Licensed Software or other individuals who have otherwise been granted access to use Collabit Licensed Software.
1.3 “Documentation” shall mean any online help files or written instruction manuals regarding the use of the Collabit Software Licence.
1.4 “Collabit Software Licence” shall mean Collabit Software’s proprietary software solutions and related services and any related hardware (if any) provided.
1.5 “Modifications” means improvements, additions, modifications, updates, upgrades, bug fixes or derivative works relating to Collabit Software Licence, by whomever made and whether or not such Modifications incorporate or are based on any information gained as a result of this Agreement.
1.6 “Recommended Equipment” shall mean any hardware or other equipment, if any, recommended by Collabit to be used with the Collabit Software Licence as specified in the Documentation.
1.7 “Results” shall have the meaning set forth in Section 3.
1.8 “Collabit Software” shall mean any executable software provided by Collabit for You to use with Collabit Software Licence.
1.9 “Collabit Hardware” shall mean any equipment provided to you as laid out in this agreement.
1.10 “Support Services” shall mean those support and maintenance services provided by Collabit to You pursuant to the terms and conditions described herein and more specifically set forth in Exhibit B attached hereto.
1.11 “Term” shall have the meaning set forth in Section 7.1.
1.12 “Third Party” shall mean any entity or individual other than Collabit or You.
2. LICENSE GRANT
2.1 Limited License Grant. Subject to the terms and conditions of this Agreement, Collabit hereby grants to You, during the Term, a non-transferable, nonexclusive, limited license to
(i) use Collabit Licenced Software solely for the purposes of integration with Your existing systems or any provided by Collabit and applications pursuant to this Agreement and use, market and provide access to the Collabit Service solely to End-Users only as provided herein and solely in accordance with the Documentation. You agree that all rights to use and/or otherwise exploit the Collabit Software Licence, Collabit Software, works and other matter developed hereunder not expressly granted to You in this Agreement are reserved by Collabit and its Third Party licensors or vendors, as applicable.
2.2 Restrictions. You agree that the Collabit Software contains trade secrets and other valuable proprietary information owned by Collabit or its Third Party vendors. You shall not and shall not allow End-Users to (a) modify, make derivative works, alter or permit a Third Party to modify, make derivative works or alter, any part of Collabit Service or Collabit Software, (b) copy or permit a Third Party to copy the Collabit Software Licence or Collabit
Software, in part or in whole, (c) reverse engineer, decompile, disassemble or otherwise attempt to derive source code of the Collabit Software Licence or Collabit Software or other proprietary information from the Collabit Software Licence, or (d) sell, transfer, lease or disclose the Collabit Software Licence to a Third Party. Collabit may electronically monitor Your use of the Collabit Software Licence or Collabit Software for compliance with the license terms and restrictions set forth in this Section 2.
3.1 As between the parties to this Agreement, Collabit and its licensors shall retain sole and exclusive ownership of, and all rights, title and interest in and to the Collabit Software, Collabit Hardware and Collabit Software Licence, as well as any graphical user interface modifications made by or for you and all suggestions, ideas, improvements, data, feedback, evaluation materials, reports, presentations, records, designs, technology, inventions, know-how, works of authorship, software, specifications, Modifications and other materials, information and any other intellectual property made, developed, conceived or reduced to practice (whether by or for You or Collabit) in the performance of this Agreement, (collectively, “Results”). To the extent necessary to effect this intention, You hereby assigns to Collabit any and all right, title and interest in and to the Collabit Software Licence, Collabit Hardware and Collabit Software and Results, and shall take all actions necessary to accomplish such assignment.
3.2 The parties shall jointly own all information which is transmitted to Collabit in connection with the Collabit Software Licence (“End-User Information”). Without the prior written consent of the other party, each party shall utilise End-User Information solely for its own internal business purpose and shall not sell, license or provide any End-User Information (other than aggregated data which does not identify any End-Users) to any Third Party; provided however, each party shall be permitted to disclose End-User Data for the purpose of complying with a governmental request for such information upon notice of such governmental request.
4.1 Your Responsibilities
(a) You shall be solely responsible for the manner in which You and End-Users use the Collabit Software Licence. You shall ensure that only authorised End-Users have access to any passwords provided by Collabit for use in connection with the Collabit Software Licence and shall not disclose such passwords to any other individual. You acknowledge and agree that it is solely responsible for strictly maintaining the confidentiality and integrity of such passwords and You shall indemnify and hold harmless Collabit from and against any liability, damages or costs arising from Your failure to comply with this Section 5.1(a). You shall notify Collabit immediately in writing if the security or integrity of a password has been compromised.
(b) You agree to (i) cooperate and consult with Collabit in the delivery of the Collabit Software Licence to You, (ii) provide and maintain, in good and working order at all times, its own Internet access and all necessary Recommended Equipment, telecommunications equipment, software and other materials necessary for End-Users to access and use of the Collabit Software Licence.
(c) You shall promptly provide to Collabit the name, address, telephone and email address of each End-User, as well as the name, company, telephone number and email address for local hardware and Internet connectivity support of You and End-Users (collectively, the “Registration Information”) upon receipt of such information.
(d) You represent and warrant to Collabit that it (i) has all requisite legal power and authority to execute this Agreement and to carry out and perform its obligations hereunder, and (ii) is and will remain in compliance with all applicable laws, regulations and rules of any government body or other competent authority relating to its business or performance under this Agreement.
5.1 Collabit Responsibilities.
(a) Subject to the terms and conditions provided herein, Collabit shall use commercially reasonable efforts to provide the Collabit Software, Collabit Hardware and Collabit Software Licence in material conformance.
(b) Subject to the terms and conditions provided herein, Collabit shall use commercially reasonable efforts to provide the Service in accordance with the Service Level Agreement
set forth in Exhibit C.
(c) Upon receipt of the Registration Information, Collabit shall use commercially reasonable efforts to have passwords issued to End-Users in order to access the Collabit Software Licence.
(d) Collabit represents and warrants to You that it (i) has all requisite legal power and authority to execute this Agreement and to carry out and perform its obligations hereunder, and (ii) is and will remain in compliance with all applicable laws, regulations and rules of any government body or other competent authority relating to its performance under this Agreement.
6. SUPPORT SERVICES
6.1 Support Services. Collabit shall use commercially reasonable efforts to provide the Support Services to You as more specifically set forth in your support agreement if applicable.
6.2 Scheduled Maintenance. Collabit reserves the right to take down applicable servers containing the Collabit Software Licence to conduct routine maintenance checks (“Scheduled Maintenance”). Collabit will use commercially reasonable efforts to perform Scheduled Maintenance outside of the business hours of Monday-Friday, 9 am-5 pm. Collabit will
not be responsible for any damages or costs incurred by You, if any, for Scheduled Maintenance.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall commence on the Effective Date and shall continue for a one-year period (the “Initial Term”) and shall automatically renew for successive one-year periods (collectively with the Initial Term, the “Term”) unless either party provides sixty (60) days notice prior to the end of the Term of the party’s intention not to renew the Agreement. Either party may terminate this Agreement as set forth below:
7.2 Termination for Cause. Either party may terminate this Agreement by giving to the other party written notice of such termination upon any of the following events: (a) the other party’s material breach of the Agreement (subject to the other party’s right to cure within thirty
days after receipt of such notice), (b) the other party becomes subject to any bankruptcy or insolvency proceedings issued under law, (c) the other party becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, (d) the other party has wound up or is liquidated, voluntarily or otherwise or (e) the other party terminates or suspends its business. Collabit may terminate this Agreement if you fail to make any payment due hereunder within ten days after receiving written notice from Collabit that such payment is delinquent.
7.3 Effect of Termination. Upon any termination of this entire Agreement, (a) Collabit shall immediately cease providing the Collabit Software Licence to You and all licenses granted hereunder shall terminate; and (b) You shall promptly (i) pay to Collabit all unpaid Fees, including any late fees, accrued prior to termination, (ii) return to Collabit all tangible embodiments of the Collabit Software, Collabit Hardware, Collabit Software Licence and Confidential Information and (iii) delete or destroy any data or software installed in a Your computer system downloaded from the Collabit Software Licence.
7.4 Survival. All rights to payment and the provisions of Sections 1, 3, 4, 7.3, and 8 through and including 13 of this Agreement shall survive any expiration or termination of this Agreement.
8. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY STATED HEREIN, COLLABIT SOFTWARE, COLLABIT HARDWARE COLLABIT SOFTWARE LICENCE, SUPPORT SERVICES, TECHNOLOGY, INTELLECTUAL PROPERTY MATERIALS, INFORMATION AND OTHER ITEMS PROVIDED BY COLLABIT UNDER THIS AGREEMENT ARE PROVIDED TO YOU AND END-USERS ON AN “AS IS” BASIS WITH NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE AND COLLABIT AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NO INFRINGEMENT AND MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COLLABIT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DELAY AND SHALL NOT BE LIABLE FOR ANY LOSS OF DATA.
9.1 Indemnification Obligation. Subject to Section 9.2 below, You shall indemnify, defend and hold Collabit harmless from any claims, actions, losses, liabilities, damages and expenses made, assessed or awarded against Collabit by any Third Party arising out of or in connection with (i) Your use of the Collabit Software and Collabit Software Licence, (ii) End-User’s use or misuse of the Collabit Software Licence, and/or (iii) representations or warranties made by You to End-Users regarding the Collabit Software Licence that is not in accordance with the Documentation or representations made pursuant to this Agreement.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF COLLABIT FOR DAMAGES ARISING OUT OF THE FURNISHING OF THE COLLABIT SOFTWARE, COLLABIT SOFTWARE LICENCE AND SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTUOUS CONDUCT OR ERRORS, OR OTHER DEFECTS,
REPRESENTATIONS, USE OF SERVICES OR ARISING OUT OF THE FAILURE TO FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
10.2 EXCEPT WITH RESPECT TO THE PARTIES LICENSE RESTRICTIONS AND CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS AS PROVIDED IN SECTIONS 9 AND 12, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER OR NOT CAUSED BY THE ACTS OR OMISSIONS OR NEGLIGENCE OF ITS EMPLOYEES OR AGENTS, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
You and Collabit agree that any and all agreements between You and End-Users involving the Collabit Software Licence (“End-User Agreements”) shall legally bind End-Users to restrictions, disclaimer of warranties, indemnification and limitation of liability provisions at least as protective of Collabit as Sections 2.3, 8, 9.1 and 10 of this Agreement.
12. CONFIDENTIAL INFORMATION
12.1 Disclosure and Use. Both parties agree that this Agreement, the Exhibits attached hereto, and the terms and conditions set forth herein and therein are Confidential Information. The Confidential Information disclosed by either party (“Disclosing Party”) to the other (“Receiving Party”) constitutes the confidential and proprietary information of the Disclosing Party, and the Receiving Party agrees to treat all Confidential Information of the other in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care. The Receiving Party shall use Confidential Information of the Disclosing Party only in performing under this Agreement and shall retain the Confidential Information in confidence and not disclose to any Third Party (except as authorised under this Agreement) without the Disclosing Party’s express written consent. The Receiving Party shall disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, and such employees and contractors must be bound by this Agreement or have entered into agreements with the Receiving Party containing confidentiality provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein.
12.2 Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information which:
(a) is already known to the Receiving Party prior to disclosure by the Disclosing Party;
(b) becomes publicly available without fault of the Receiving Party;
(c) is rightfully obtained by the Receiving Party from a Third Party without restriction as to disclosure, or is approved for release by written authorisation of the Disclosing Party;
(d) is developed independently by the Receiving Party without the use of or access to the Disclosing Party’s Confidential Information; or
(e) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure and reasonably cooperates with the Disclosing Party in limiting such disclosure.
12.3 Remedies. Notwithstanding any other provision of this Agreement, Collabit shall be entitled to suspend or terminate the Collabit Software Licence provided to You to protect its interests in the event of any breach or threatened breach by You of this Section 12. Nothing stated herein shall be construed to limit any other remedies available to the parties.
13. GENERAL TERMS
13.1 Extreme Circumstances. Except with respect to payment obligations, neither party shall be liable for any failure of performance or equipment due to causes beyond such party’s reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labour difficulties.
13.2 Basis of Bargain. Collabit and You acknowledge that Collabit has set its Fees and entered into this Agreement in reliance upon the disclaimers of warranties and limitations of liability and damages as set forth in this Agreement and that such provisions form an essential basis of the bargain between the parties and do not cause this Agreement, or the remedies available hereunder, to fail of its or their essential purpose.
13.3 Assignment; Binding Effect. This Agreement may not be transferred or assigned by either party without the express written consent of the other, except to an acquirer of more than fifty percent (50%) of the assigning party’s outstanding voting capital stock or to a purchaser of all or substantially all of the assigning party’s assets. Notwithstanding the foregoing or any other provision of this Agreement, You may not assign, sublicense, delegate or transfer this Agreement or any of its rights or obligations under this Agreement to any competitor of Collabit ASP. Any purported transfer or assignment in contravention of this Section shall be null and void. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
13.4 Notices. Any notice hereunder shall be deemed properly given when delivered, if delivered in person, overnight courier, certified or registered mail (postage prepaid) to You at the address listed on Order Form or to Collabit at: Collabit Software Limited., ATTENTION: Legal Department, 4th Floor, Davis House, 69-77 High Street, Croydon, CR0 1QQ. Each party must notify the other party of any changes to its address in accordance with this Section.
13.5 Governing Law. This Agreement shall be governed and construed in accordance with applicable laws of England and Wales.
13.6 Amendment; No Waiver. Except as otherwise expressly provided herein, any provision of this Agreement may be amended or modified and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the parties. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right then or in the future.
13.7 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement.
13.8 Prevailing Party. The prevailing party in any action to enforce this Agreement will be entitled to recover any costs incurred with such action.
13.9 Independent Contractors. The relationship of Collabit and You established by this Agreement is that of independent contractors and nothing in this Agreement shall be construed (i) to give either party the power to direct or control the day-to-day activities of the other or (ii) to constitute the parties as partners, franchisees, joint ventures, co-owners or otherwise as participants in a joint or common undertaking. Further, nothing in this Agreement shall prevent Collabit from licensing or providing the Collabit Software Licence or similar services to any
third party or from engaging in any development of software or products similar in any manner to the Collabit Software Licence provided hereunder.
13.10 Severability. If for any reason a court of competent jurisdiction finds any provision of this agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the economic intent of the parties, and the remainder of this Agreement will continue in full force and effect.
13.11 Counterparts. This Agreement may be executed in counterparts and by telecopy, each of which shall be considered an original, but all of which taken together shall constitute one and the same instrument.
13.12 Entire Agreement. This Agreement, including the Exhibits attached hereto, constitutes the entire Agreement of the parties concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements between the parties respecting the subject matter of this Agreement.