End User License Agreement – Terms and Conditions
These Terms and Conditions form part of the Agreement between Landoop and the Licensee whose details appear on the applicable Order, and apply to the provision of the Software set out in the Order by Landoop to such Licensee.
WHEREAS:
(A) Landoop is the entire legal and beneficial owner of the Software and is willing to license the use of the Software.
(B) The Licensee wishes to obtain a license to use the Software.
(C) Landoop wishes to enter into an arrangement to license the use of the Software (defined below) to the Licensee, on the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual promises and undertakings contained herein, and other good and valuable consideration, the parties agree as follows:
“Agreement” means this license agreement including the Order and all executed Schedules.
“Charges” means those charges and fees for the Software set out in the Order to this Agreement;
“Confidential Information” means information that:
(a) is by its nature confidential;
(b) is designated in writing by Landoop as confidential;
(c) the Licensee knows or reasonably ought to know is confidential;
(d) Information comprised in or relating to any Intellectual Property Rights of Landoop.
“Intellectual Property Rights” means all rights in and to any copyright, trademark, trading name, design, patent, know how (trade secrets) and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic field and any application or right to apply for registration of any of these rights and any right to protect or enforce any of these rights.
“Order(s)” means the schedule(s) that set out details of the licence granted by Landoop to the Licensee, substantially in the form attached hereto.
“Licence Scope” means the scope of the licence granted by Landoop to the Licensee hereunder, as set out in clause 2 and the Licence Schedule(s).
“Software” means the software product provided by Landoop as set out in the Order in the format set out in the Licence Schedule.
“Supported Environment” means a software and hardware environment on which the Supported Technologies have been installed;
“Supported Technologies” means the versions of Apache Kafka with which the Software must be used.
“Term” means the term of this Agreement, as set out in the Order.
In the case of conflict or ambiguity between any provision contained in the body of this license and any provision contained in the Order, the provisions in the body shall take precedence.
2. LICENSE GRANT
2.1. In consideration of the fee paid by the Licensee, Landoop grants to the Licensee a non-exclusive, non-transferable, non-sublicensable license for the Term set out in the Order to install and use the Software on the Supported Technologies strictly in accordance with the Licence Scope set out in the Order and subject to the terms and conditions set out in this Agreement and the Licence Schedule.
2.2. The Licensee may not use the license other than as specified in the Order, without the prior written consent of Landoop and the Licensee acknowledges that additional fees may be payable on any change of use approved by Landoop. The Licensee may make backup copies of the Software for its lawful use. The Licensee shall record the number and location of all copies and take steps to prevent unauthorised use.
2.3 . The Licensee shall not, without the prior written consent of Landoop;
2.3.1 . Sub-license, assign or novate the benefit or burden of this license in whole or in part;
2.3.2 . Allow the Software to become the subject of any charge, lien or encumbrance; and
2.3.3 . Deal in any other manner with any or all of its rights and obligations under this Agreement.
2.4. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
2.5. The Licensee shall ensure that the number of installations of the Software does not exceed the number specified in the Order and shall notify Landoop immediately if it becomes aware of any unauthorised use of the Software by any person.
2.6. Nothing in this Agreement will serve to transfer from Landoop to the Licensee ownership of the Software, and save for the limited licence expressly set out herein, all right, title and interest in and to the same will remain exclusively with Landoop.
2.7. The Licensee grants to Landoop a non-exclusive, worldwide, non-assignable, non-sub-licensable, royalty-free licence to use such information and materials as are provided to Landoop by the Licensee for the sole purposes of performing its obligations under this Agreement.
2.8. Nothing in this Agreement shall prevent Landoop from using any know-how, methods, techniques or procedures owned or developed by Landoop in the course of complying with its obligations hereunder.
2.9 . The Supported Technologies required by the Licensee to enable it to use the Software shall be procured by the Licensee.
2.10. Save as otherwise expressly authorised by this Agreement, the Licensee will not:
2.10.1 . modify, translate or create derivative works of the Software;
2.10.2 . decompile, reverse engineer or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software;
2.10.3 . sell, assign, sublicense, rent, lease, loan, provide, distribute, share, timeshare, grant a security interest in, use for service bureau purposes, or otherwise transfer all or any portion of the Software, or the Licensee’s right and license to use the Software;
2.10.4 . make, have made, reproduce or copy the Software;
2.10.5 . remove or alter any trademark, logo, copyright or other proprietary notices associated with the Software;
2.10.6 . use the Software in any manner not expressly authorised by this Agreement; or
2.10.7 . cause or permit any other party to do any of the foregoing.
2.11. The Licensee may permit its employees to use the Software in accordance with the Licence Scope, provided that the Licensee takes all necessary steps to procure such employees’ compliance with the terms of this Agreement.
2.12. The Licensee will put in place all appropriate technological and other security measures to ensure that the Software is physically and electronically secure from unauthorized use or access.
3 . THIRD PARTY SOFTWARE
3.1. The Software may be delivered with other software or code distributed subject to licenses from third-party suppliers (“Third Party Software”). The Licensee accepts and agrees to the terms of such third-party licenses applicable to the Third Party Software and acknowledges that such third-party suppliers disclaim and make no representation or warranty with respect to the Third Party Software or any portion thereof and assume no liability for any claim that may arise with respect to the Third Party Software. Third Party Software licenses are set forth at: http://landoop.com/third-party-software
4 . LICENSEE OBLIGATIONS
4.1. The Licensee shall install the Software and Third Party Software on the Supported Environment and shall use the Software only in connection with such Supported Environment.
4.2. The Licensee shall be responsible for setting its authorised users up with access to the Software, and Landoop shall have no liability for any inability of the Licensee’s authorised used to access the Software, or for any unauthorised access to the Software.
5 . SUPPORT AND MAINTENANCE
5.1. Where expressly set out in the Order, Landoop will provide the Licensee with such support and maintenance as is set out in the Support Schedule.
5.2. Notwithstanding the provision of support or maintenance by Landoop, or any other terms associated with the provision of the same, Landoop shall not be obliged to make modifications or provide support in relation to the Licensee's computer hardware, operating system software, or third party application software or any data feeds or external data.
6 . OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. As between Landoop and the Licensee and subject to the grants under this Agreement, Landoop owns all right, title and interest in and to:
6.1.1 . the Software (including, but not limited to, any modifications thereto or derivative works thereof);
6.1.2 . all ideas, inventions, discoveries, improvements, information, creative works and any other works discovered, prepared or developed by Landoop in the course of or resulting from the provision of any services under this Agreement; and
6.1.3 . any and all Intellectual Property Rights embodied in the foregoing.
6.2. The Licensee acknowledges that all Intellectual Property Rights in the Software and any maintenance releases belong and shall belong to Landoop, and the Licensee shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement.
7 . CHARGES
7.1. The Software will be provided for the Charges set out in the applicable Order.
7.2. Unless stated to the contrary in a Order, any Charge or rate of charge may be increased annually by Landoop upon not less than thirty days prior written notice to the Licensee and by no more than the UK Consumer Prices Index plus 2%.
7.3. All Charges hereunder are exclusive of VAT and any other taxes or duties that shall be charged in addition at the rates in force at the time of application.
7.4. Invoices rendered by Landoop to a Licensee shall be paid by each Licensee in full without discount, deduction, set-off or counterclaim of any kind in accordance with the payment terms set out in the relevant Order or otherwise within twenty-eight (28) days of the invoice date.
7.5. Should a Licensee fail to make any payment due under the terms of this Agreement by the due date for payment to Landoop, then Landoop shall be entitled without prejudice to any other right or remedy to charge the Licensee interest on the amount outstanding on a daily basis at the rate of five per cent (5%) per annum above the base rate of the Bank of England from time to time in force, such interest to be calculated from the due date for payment thereof to the date of actual payment.
8 . LIMITATION OF LIABILITY
8.1. Landoop shall not in any circumstances have any liability for any consequential, indirect or economic loss or damage.
8.2. Furthermore, Landoop shall not be liable for any losses or damages which may be suffered by the Licensee (or any other person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise, howsoever, which fall within any of the following categories:
8.2.1. special damage even if Landoop was aware of the circumstances in which such special damage could arise;
8.2.2. loss of profits;
8.2.3. loss of anticipated savings;loss of business opportunity;
8.2.4. loss of goodwill;
8.2.5. loss or corruption of data.
8.3. Subject to clause 8.6, the total liability of Landoop, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall not exceed in the aggregate a sum equal to the fee paid or payable as per this Agreement, during the twelve (12) months immediately prior to the event giving rise to this liability; and
8.4. The Licensee agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) Landoop shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
8.5. Notwithstanding anything contained in this Agreement, in no event shall Landoop be liable for any claims, damages or loss which may arise from the modification, combination, operation or use of the Software with Licensee computer programs.
8.6. The exclusions and limitations of liability in clauses 8.1 to 8.5 shall apply to the fullest extent permissible at law, but Landoop does not exclude liability for:
8.6.1. death or personal injury caused by the negligence of Landoop, its officers, employees, contractors or agents;
8.6.2. fraud or fraudulent misrepresentation;
8.6.3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
8.6.4. any other liability which may not be excluded or limited by law.
8.7. All dates supplied by Landoop for the delivery of the Software shall be treated as approximate only. Landoop shall not in any circumstances be liable for any loss or damage arising from any reasonable delay in delivery beyond such approximate dates.
8.8. All references to "Landoop" in this clause 8 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of Landoop and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
9 . CONFIDENTIALITY
9.1 . Each party shall, during the term of this licence and thereafter, keep confidential all Confidential Information, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any Confidential Information, which may become known to such party from the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
9.2 . This clause 9 will survive termination of this Agreement.
9.3 Publicity. Licensee may state publicly that it is a user of the Software. Any identification or use of a party’s brand, logo or trademark shall conform with the trademark use guidelines provided by one party to the other. Licensee agrees to participate with Landoop in publicity events which include the items listed below:
10. DATA PROTECTION
10.1. The Licensee and Landoop shall comply with all applicable data protection and privacy laws and regulations in the performance of its obligations set out under these Terms, including the EU General Data Protection Regulation 2016/679 (“GDPR”) (“Data Protection Laws”), in each case including all other successor legislation and regulation thereto. Full information regarding Landoop’s use of personal information can be found in Landoop’s Privacy Policy.
10.2. Landoop may collect, store, transfer and process data regarding the Licensee’s authorised use of the Software (“Telemetry Data”), such as but not limited to IP addresses, information about the browser or device, information regarding the usage: for example when it’s used or how often, which function is used or related statistical information, information about the software for example the version or usage history of the Software. In no case does Landoop collect any information from content or data processed by the user. Telemetry Data collection serves exclusively for statistical purposes and for guiding the development of Landoop’s products and services. The Licensee may at any time disable the collection of Telemetry Data via the configuration settings of the Software.
11. WARRANTY DISCLAIMER
11.1. To the maximum extent permitted by applicable law, the Licensee acknowledges and agrees that the Software is used by Licensee at Licensee’s sole risk and is provided ‘as is’ without warranty of any kind, either express or implied, including, but not limited to, any (if any) implied warranties of merchantable quality, conditions of fitness for a particular purpose and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.
11.2. Landoop does not guarantee, warrant or make any representation that the operation of the Software will be uninterrupted or error-free, or that defects in the Software will be corrected. Furthermore, Landoop does not guarantee, warrant or make any representation regarding the use or the results of the use of the Software in terms of their correctness, accuracy, reliability or otherwise. No oral or written information or advice given by Landoop or an authorised representative of Landoop shall or shall be deemed to create a warranty.
11.3. Landoop does not warrant that the Software will function in any environment other than on the Supported Technologies and Landoop shall not be liable for any failure by the Licensee to properly install the Software on the Supported Environment.
11.4. The Licensee acknowledges that:
11.4.1. The Software has not been prepared to meet any specific requirements of any party, including any requirements of Licensee; and
11.4.2. it is therefore the responsibility of the Licensee to ensure that the Software meets its own individual requirements.
11.5. All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Agreement, whether express or implied by statute, common law, trade usage or otherwise and whether written or oral, are hereby expressly excluded to the fullest extent permissible under applicable law.
12. INDEMNIFICATION
12.1. Landoop, at its expense and in its sole discretion, shall defend any claim, demand, action or proceeding against a Licensee asserting that the Software licensed to the Licensee pursuant to an Order infringes any Intellectual Property Rights of any third party (each an “Infringement Claim”) and shall pay any final judgments awarded or settlements entered into with such third party, provided that the Licensee gives prompt written notice to Landoop of any such Infringement Claim, grants Landoop the full authority to proceed as contemplated herein and uses all reasonable endeavours to mitigate the sums which may be payable by Landoop hereunder. The foregoing obligations shall not apply to the extent the alleged infringement arises as a result of or is based upon (i) modifications to the Software not performed by Landoop; or (ii) use or combination of the Software with other programs or data.
12.2. Landoop shall have the exclusive right to defend at its expense any such Infringement Claim, and to make settlements thereof at its own discretion, and the Licensee may not settle or compromise any such Infringement Claim, except with the prior written consent of Landoop. The Licensee shall give such assistance and information as Landoop may reasonably require in connection with the investigation, defense or settlement such Infringement Claims. In the event any such Infringement Claim is brought or threatened, Landoop may at its sole option and expense:
12.2.1. procure for the Licensee the right to continue use of the Software or the allegedly infringing part thereof; or
12.2.2. modify or amend the Software or the allegedly infringing part thereof, or replace the Software so the Software or part thereof as so modified, amended or replaced has substantially the same or better capabilities as the original Software or part thereof; or
12.2.3. if neither of the foregoing solutions is commercially practicable, Landoop may terminate this Agreement with respect to the allegedly infringing part of the Software and for term licenses Landoop shall refund the licence fees paid by Licensee which are attributable to any future period for which license fees have been paid in advance but which the Software will not be used. Landoop will then be released from any further obligation whatsoever to Licensee in connection with the alleged infringing part of the Software.
13. GOVERNING LAW
13.1. 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
13.2. 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).
14. TERM AND TERMINATION
14.1. This Agreement commences on the Effective Date and shall continue until terminated by either party on the provision of not less than sixty (60) days written notice to the other, save that no such termination shall be effective until all Licence Schedules have expired or have been terminated.
14.2. Landoop may terminate this Agreement or any Order in the event of any of the following:
14.2.1. if the Licensee is in breach of any term of this Agreement and has not corrected such breach to Landoop’s reasonable satisfaction within 15 days of Landoop’s notice of the same; or
14.2.2. if the Licensee becomes insolvent, or institutes (or there is instituted against it) proceedings in bankruptcy, insolvency, reorganization or dissolution, or makes an assignment for the benefit of creditors.
14.3. Termination under this clause shall not affect any other rights or remedies Landoop may have.
14.4. On termination of this Agreement for any reason:
14.4.1. Landoop shall be entitled to be paid all sums due and any additional sums specified in each Licence Schedule; and
14.4.2. all licences granted pursuant this Agreement and the Order(s) shall immediately terminate.
14.5. On termination of this Agreement for any reason this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or impliedly have effect after termination.
15.1. Licensee shall not assign any rights of this Agreement, without the prior written consent of Landoop.
16.1. Nothing in this Agreement is intended to, or shall be deemed to establish any partnership or joint venture between any of the parties, or constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party
17.1. This Agreement may be executed in any number of counterparts, each of which when executed and delivered, shall constitute a duplicate original but all the counterparts shall together constitute one Agreement.
18.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
18.2. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. FORCE MAJEURE
20.1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Agreement by giving 10 days' written notice to the affected party.
21. NOTICES
21.1. Any notice given to a party under or in connection with this contract shall be in writing and shall be:
21.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (in any other case); and
21.1.2. sent by email to info@landoop.com
21.2. Any notice shall be deemed to have been received:
21.2.1. if delivered by hand, on signature of a delivery receipt
21.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
21.2.3. if sent by email, at 9.00 am on the next Business Day after transmission.
22. ENTIRE AGREEMENT
22.1. This Agreement (including these Terms, the Order and any other Schedules referred to in the Order) contains the entire agreement between the Parties and supersedes any previous understanding, commitments or agreements, oral or written. Further, this Agreement may not be modified, changed, or otherwise altered in any respect except by a written agreement signed by both Parties.
These Support Terms form part of the Agreement between Landoop and the Licensee whose details appear on the applicable Order, and applies to the provision of support and maintenance by Landoop to such Licensee.
DEFINITIONS
"The Maintenance Services" means the maintenance services to be provided by Landoop to the Licensee as outlined in clause 2 of this schedule;
"The Program Documentation" means the user instructions, operating manuals and all other related materials supplied by Landoop to enable the proper operation and functionality of the Software.
"The Support Services" means the support services to be provided by Landoop to the Licensee as outlined in clause 1 of this schedule
1. SUPPORT SERVICES
1.1 During the term of this Agreement Landoop shall provide the following support services to the Licensee:
1.1.1 Technical support is provided to Licensee paying account holders and is available in accordance with the Service Level Agreement via email (support@landoop.com) or via the customer support portal (https://support.landoop.com) on a 8x5 basis, Monday through Friday, 8:30 AM - 06:30 PM (British Standard Time), England and Wales Bank Holidays excluded.
1.1.2 Support is only available in English.
1.2 The Licensee shall supply to Landoop a detailed description of any fault requiring support services and the circumstances in which it arose, and shall submit sufficient material and information to enable the Landoop’s support staff to duplicate the problem.
2. MAINTENANCE SERVICES
During the term of this Agreement Landoop shall provide the following maintenance services to the Licensee:
2.1 Error Correction
2.1.1 Landoop shall ensure that all faults in the Software shall be classified and handled as shown below. Failures shall be classified as to the severity that they have on the working system. The severity classification shall be used to determine the response time for returning the system to its fully operational state, as further set out in the Service Level Agreement set out in the Order.
The severity classification shall be:
(i) Class P1: Emergency. Any Software problem resulting in complete outage or loss of service or functionality and not fixed after restarting the service;
(ii) Class P2: Urgent. Any Software problem that reduces software service and functionality, system security or data integrity, or which represents a serious threat to service;
(iii) Class P3: Non-urgent. Low level Software or procedural problems requiring resolution in defined time scales;
(iv) Class P4: Low. Other low level Software or procedural problem or enhancement requests
2.1.2 The Licensee shall determine the severity of classification of faults as they arise.
2.1.3 The error correction service referred to in this clause 2.1 shall not apply to any version of the Software other than the current release or to defects or errors resulting from any unauthorised modification or incorrect use of the current release (including use of the current release on or with faulty equipment or programs used in conjunction with the current release or on or with equipment (other than such computer equipment on which the Software is installed and in operational use) or programs not supplied by or approved in writing by Landoop, provided that for this purpose any programs designated for use with the current release in the specification shall be deemed to have the written approval of Landoop).
2.1.4 The Licensee shall be charged in accordance with Landoop’s current standard scale of charges for any services provided by Landoop at the request of the Licensee which are excluded under 2.1.3 clause or which Landoop finds are unnecessary.
2.2 Releases
2.2.1 Landoop shall inform the Licensee promptly of any improved version of the Software that Landoop shall make from time to time and shall deliver to the Licensee as soon as reasonably practicable the object code of the new release in machine-readable form together with the Program Documentation published on Landoop’s website.
2.3 Technical Advice
2.3.1 Technical advice will be provided by Landoop to resolve any difficulties or questions the Licensee may have with regard to the use of any current release. Such technical advice shall be provided by e-mail through support@landoop.com or such other means as set out in the Service Level Agreement.
3. EXCLUSIONS
3.1 Landoop shall not be obliged to provide Support Services or Maintenance Services in respect of:
3.1.1 any software other than the Software;
3.1.2 defects or errors resulting from any unauthorised modification of the Software or the equipment on which the Software is installed and in operational use;
3.1.3 defects or errors resulting from incorrect use of the Software (including use of the Software on faulty equipment or with computer hardware, operating systems or other supporting software other than those specified in the Program Documentation); and
3.1.4 any programs not supplied by or approved in writing by Landoop.
3.1.5 any Open-Source Software component included and/or used in the Software
3.2 The Licensee shall be charged in accordance with Landoop’s current standard scale of charges for any Support Services and Maintenance Services provided by Landoop at the request of the Licensee which are excluded under clause 3.1.
3.3 Where a new version of the Software has been available to the Licensee, Landoop reserves the right to discontinue the Support Services and Maintenance Services for any prior version of the Software.
3.4 Landoop shall not be obliged to make modifications or provide support in relation to the Licensee's computer hardware, operating system software, or third party application software or any data feeds or external data.