QUOD ORBIS: END USER LICENCE AGREEMENT

QUOD ORBIS: END USER LICENCE AGREEMENT

 This licence agreement (Licence) is a legal agreement between Quod Orbis Limited, 5 Technology Park, Colindeep Lane, Colindale, London, NW9 6BX (company number 11463622) (Quod Orbis, we or us) and (Licensee or you), for the use of the Solution. By installing our Solution or using our Services you are agreeing to the terms of this Licence. If you do not agree to its terms, you must not install or use of Solution or Services.

This Licence covers your use of the Platform, the Data Collector, the Support Services and any associated services and/or documentation provided by Quod Orbis to you as well as any outputs of the Platform, the Data Collector or the Support Services.

Other terms used in this Licence are:

Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party, and for these purposes “control” shall have the meaning given in section 1124 of the Corporation Tax Act 2010

Authorised User: a person permitted by the Licensee, in accordance with the terms of this agreement, to access and use the Platform.

Charges: The charges for the use of the Solution and Services, payable by you to Quod Orbis, or a Service Provider, as the case may be.

Controls: mechanisms designed to address needs as specified by a regulatory framework or set of security controls, in the form of measurable safeguards or counter measures used to protect the confidentiality, integrity, and availability of the systems under continuous controls monitoring.

Data Collector: as defined in the Service Delivery Document.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK, including the UK General Data Protection Regulation (“UK GDPR”) and the Data Protection Act 2018 (as amended or replaced from time to time).

Good Industry Practice: the exercise of such reasonable skill and care, as would be expected from a reasonably and suitably skilled, trained and experienced organisation of a similar scale and nature, engaged in the same type of undertaking and for the same or similar circumstances as Quod Orbis.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Licensee Data: data that either: (a) the Licensee, or a person acting on its behalf, provides to Quod Orbis, or permits Quod Orbis to access, through the Platform and in connection with this agreement; or (b) Quod Orbis creates in providing the Services and which relates solely to the Licensee Group, any Licensee or the Licensee Group’s use of the Services.

Licensee Group: the Customer and all its Affiliates “you” (and “member of the Licensee Group” shall be construed accordingly) from time to time.

Materials: any documented methodology or process or other material in whatever form, including any reports, specifications, business rules or requirements.

Platform: The Quod Orbis Platform for Continuous Control Monitoring.

Platform Guides: all technical end-user manuals, guides, and operating instructions (including video guides) that are provided by Quod Orbis to the Licensee that may assist Authorised Users to use the Platform.

Quod Orbis Website: https://www.quodorbis.com/

Service Provider: if you are receiving the Platform or Services under an agreement with Yash Technologies or another third-party provider, or we have an arrangement with a third party to provide you with certain services, we refer to this third party as a Service Provider.

Service Delivery Document: the specification of the Platform,  as updated by Quod Orbis from time to time.

Support Services: means the support services to be provided by the Company in respect of the Platform, as set out in the Service Delivery Document.

1. GRANT AND SCOPE OF LICENCE

• In consideration of payment by you of the Charges and your agreeing to abide by the terms of this Licence, we hereby grant to you a non-exclusive, non-transferable, non-sub-licensable and non-assignable right and licence to access and use the Solution on the terms of this Licence, and to access and use the Platform and the Platform Guides, along with the Support Services.
• You will take reasonable steps requested by Quod Orbis to cooperate with Quod Orbis and give all such information, assistance and access as may be reasonably necessary to enable Quod Orbis to install the Data Collector (either on-site or remotely) and to enable Quod Orbis to perform its obligations under this Agreement.
• You may exercise the rights and licences granted to you under this agreement:
  • through all Authorised Users, but
  • only for the business purposes of the internal business use and Controls of the members of the Licensee Group.
• You will:
  • not access without authority, interfere with, damage or disrupt any part of the Platform, any equipment or network on which the Platform is stored or any equipment or network or software owned or used by any third party involved in the provision of the Platform;
  • except as expressly authorised, not rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify or timeshare the Solution or any portion of it, unless any of the foregoing activities are undertaken in relation to standard IT support functions;
  • not use the Platform or any portion of it as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution;
  • not attempt to delete or modify any Intellectual Property Rights notice or other legal notice from the Platform; or
  • supply a list of Authorised Users to Quod Orbis and not authorise any person who is not an Authorised User to access or use the Platform;
  • ensure that each Authorised User complies with all relevant provisions of this agreement as if such person were a party;
  • be responsible for the acts and omissions of any Authorised Users if they were the acts and omissions of the Licensee;
  • be responsible for managing the use of all login details made available to the Licensee and its Authorised Users and be responsible for use of the Platform via any logins issued to it or its Authorised Users (including any person who accesses any protected parts of the Platform using the Licensee or its Authorised User’s login details);
  • ensure that each Authorised User keeps their login and password details confidential and does not share them with any other person or allow any other person to use them;
  • ensure that an Authorised User is only one individual (natural) person;
  • notify Quod Orbis or the Service Provider in the event an Authorised User ceases to be engaged by the Licensee;
  • notify Quod Orbis promptly of any unauthorised use of the Platform by any person (including its personnel) or any other breach of security of the Platform;
  • except as required to be permitted by law, not (and will not attempt to or allow any third party to or attempt to) copy, adapt, alter, amend, modify, reverse engineer, decompile, disassemble or decode the whole or any part of the Data Collector (or any underlying software used to provide the Platform) or translate the whole or any part of the Data Collector (or any underlying software used to provide the Platform) into another digital language;
  • not, nor allow any third party to, access, copy, make error corrections or to otherwise modify and/or enhance the Data Collector nor create derivative works based upon the Data Collector.
  • Quod Orbis reserves the right to suspend the use of the Platform at any time if it can demonstrate (acting reasonably) that suspension is necessary to preserve the security of the Platform or the Licensee Data. Quod Orbis will provide the Licensee with as much notice of any such suspension as it is reasonably able to and will restore the ability to use the Platform promptly following resolution
  • Your point of contact with Quod Orbis in matters related to this Agreement is Tim Williams ([email protected]) or such other person as may be advised by Quod Orbis from time to time.

2. SERVICE PROVIDER

If you are paying the Charges only to a Service Provider and your arrangement with such Service Provider ends, in order to continue to have the right to use the Services you must immediately notify Quod Orbis in writing (which may include email) of this.  You must also pay future monetary commitments (“the Charges”) directly to Quod Orbis and such Charges will be as set out on the Quod Orbis Website from time to time or notified by us to you.  Failure to pay the Charges will entitle us to terminate this Licence.

3. INTELLECTUAL PROPERTY AND DATA
   • All Intellectual Property Rights in the Solution and all Intellectual Property Rights in the Platform Guides and any other Materials provided to the Licensee in connection with this agreement and shall remain, the exclusive property of Quod Orbis (or Quod Orbis’ licensors or suppliers).
   • Save as expressly permitted under this agreement, the Licensee shall not do anything that infringes Quod Orbis’ (or its licensors’) Intellectual Property Rights in the Services, the Platform Guides or any other Materials provided by or on behalf of Quod Orbis under this agreement.
   • Quod Orbis will indemnify the Licensee from and against any claim made against the Licensee alleging that the performance or receipt of the Services, or use of the Solution in accordance with the terms of this agreement infringes the Intellectual Property Rights of any third party (“Quod Orbis Infringement Claim”). However, Quod Orbis will not be liable to extent that any such Infringement Claim is caused by data or Materials provided by (or on behalf of) the Licensee.
   • As between the Licensee and Quod Orbis, all right, title and interest in and to all:
   • Licensee Data; and
   • Intellectual Property Rights owned or controlled by any member of the Licensee Group,

shall remain exclusively with the relevant member of the Licensee Group and its licensors, as applicable. The Licensee hereby grants to Quod Orbis a non-exclusive, royalty-free right and licence solely  to use the Licensee Data and other Material provided by or on behalf of the Licensee for the sole purpose of allowing Quod Orbis to comply with its obligations under this agreement.

• Licensee will indemnify Quod Orbis from and against any claim made against Quod Orbis alleging that use or possession of the Licensee Data and other Material provided by or on behalf of the Licensee in accordance with the terms of this agreement infringes the Intellectual Property Rights of any third party (“Licensee Infringement Claim”). However, the Licensee shall not be liable with respect to any Licensee Infringement Claim to the extent it is caused by Quod Orbis’ breach of this agreement.
• If any third party makes an Infringement Claim, or notifies an intention to make an Infringement Claim against the Licensee, the Licensee shall:
  • as soon as reasonably practicable, give written notice of the Infringement Claim to Quod Orbis, specifying the nature of the Infringement Claim in reasonable detail;
  • if requested by Quod Orbis, give Quod Orbis full authority to defend or settle the Infringement Claim, provided that such settlement does not impose any obligation (monetary or otherwise) on the Licensee without the Licensee’s prior written consent;
  • not make any admission of liability, agreement or compromise in relation to the Infringement Claim without the prior written consent of Quod Orbis party (such consent not to be unreasonably conditioned, withheld or delayed); and
  • provide Quod Orbis and its professional advisers, at Quod Orbis’ sole expense, with all reasonable co-operation in the defence and settlement of such claim.
• In the event of a Quod Orbis Infringement Claim, Quod Orbis shall at its election and its cost:
  • procure for the Licensee the right to use the Solution;
  • provide the Licensee with access to and use of a non-infringing replacement of the Solution, or modify the Solution so that it becomes non-infringing, provided that any replacement or modification (or both) meet substantially the same functional specifications set out in the Service Delivery Document.
• Upon Quod Orbis’ execution of one of the options set out in clause 9, Quod Orbis shall, without prejudice to the indemnity set out in clause 3.3, be relieved of any further obligation or liability to the Licensee as a result of any such Infringement Claim.
• You acknowledge that you are responsible for ensuring that your use of the Products does not infringe the rights of any third party (including your customers) as regards:

(a)        the collection, transfer and use of data; or

(b)       data privacy or the use of personal data.

• The parties do not anticipate that the provision of the Solution or Services will involve the generation or processing of any personal data by Quod Orbis on the Licensee’s behalf.
• The Licensee will use reasonable endeavours to ensure that it does not provide any personal data to Quod Orbis (or any subcontractor or agent of Quod Orbis) in connection with this agreement. Notwithstanding the foregoing, each party will promptly notify the other if it becomes aware that the Licensee has provided personal data to Quod Orbis in connection with this agreement or if Quod Orbis is otherwise processing personal data on the Customer’s behalf in connection with this agreement. To the extent reasonably practicable, Quod Orbis will return or delete any such personal data promptly after it becomes aware of it.
• If after the date of this agreement the factual arrangements between the parties dictates that Quod Orbis is processing personal data as a processor on behalf of the Customer, Quod Orbis shall comply with all Data Protection Legislation.

4. SECURITY STANDARDS

• Quod Orbis will implement and maintain security policies appropriate to the level of sensitivity of the Customer Data, in accordance with Good Industry Practice.
• Quod Orbis will implement and maintain perimeter security controls, that are consistent with Good Industry Practice for secure configuration consistent with the system architecture provided and/or used (including cloud storage or infrastructure) by Quod Orbis. The Customer may select either multi-factor authentication or single sign-on support during the user set up process.
• Quod Orbis will implement and maintain practices for the security of cloud resources, software as a service and web applications, consistent with Good Industry Practice.
• Quod Orbis will perform or outsource regular assessments of perimeter controls consistent with the system architecture provided and/or used by Quod Orbis.
• Quod Orbis will implement and maintain a process for timely review and installation of security software patches and updates for systems, devices, and applications.
• Quod Orbis will implement and maintain a process for timely remediation of vulnerabilities identified in the course of business and vulnerability management activities.
• Quod Orbis will safeguard data at rest as well as during transmission across open networks, including by using:
• strong cryptography and security protocols to safeguard data during transmission over open, public networks; and
• Good Industry Practice to implement strong encryption for authentication and transmission over wireless networks of data or connected to sensitive networks.

5. LIABILITY

• Save as specifically agreed with you otherwise, the Platform and Services are provided “as is” and you accept that it is impossible to create error-free software. When we become aware of any serious bugs or errors, we will promptly endeavour to produce a patch or update.

5.2                We shall not in any circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Licence for:

(a)        loss of profit, revenue or business;

(b)        loss of anticipated savings;

(c)        loss of goodwill or damage to reputation; or

(d)        any special, incidental, consequential, indirect damages.

5.3                Other than losses set out in Clause 5.2 above (for which we are not liable), out maximum aggregate liability under or in connection with this Licence, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to one million pounds sterling (£1 million). This maximum cap does not apply to Clause 5.4 below.

5.4     Nothing in this Licence shall limit or exclude our liability for:

(a)     death or personal injury resulting from our negligence;

(b)     fraud or fraudulent misrepresentation;

(c)      any other liability that cannot be excluded or limited by English law.

 

5.5     This Licence sets out the full extent of our obligations and liabilities in respect of the Platform and Services. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us.  Any condition, warranty, representation or other term concerning the supply of the Platform or Services which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

 

6. SUSPENSION AND TERMINATION

6.1       Either Party may terminate this Licence immediately by written notice to the other Party  if such Party commits a material or persistent breach of this Licence which such Party fails to remedy (if remediable) within 14 days after the service of written notice requiring such Party to do so.

 

6.2       Upon termination for any reason, all rights granted and obligations set forth under this Licence shall cease, with the exception of the accrued rights of the parties as at termination and any rights which by their nature survive termination; in particular you must immediately cease all activities authorised by this Licence and notify the Service Provider immediately of the termination.

 

6.3       Neither Party will we be in breach of this agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this agreement to the extent that such failure or delay is caused by any event or circumstance beyond the reasonable control of the party seeking to rely on such event, including, to any act of God, flood, lightning or fire, storm, act or omission of Government, war, failure of a telecommunications network or the internet or pandemic (including COVID-19) (a “Force Majeure Event”). Either Party may terminate this Agreement if a Force Majeure Event prevents our performance for an uninterrupted period of sixty (60) days or more. In the event of any failure or delay caused by a Force Majeure Event, we shall give prompt written notice to you stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimise the effects of such Force Majeure Event.

 

7. GENERAL

7.1       We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.

 

7.2       You may transfer your rights and obligations under this Licence to an Affiliate, but otherwise may only transfer your rights or obligations under this Licence to another person if we agree to this in writing (such agreement shall not unreasonably be withheld).

• Quod Orbis may update the terms (including any specification) set out on the Quod Orbis Website or other such platform as is notified to the Licensee from time to time, provided always that the core functionality of the Platform will not be affected by such an update. Quod Orbis will notify the Licensee in writing in relation to any such change. If the Licensee does not agree to such change(s), the Licensee may continue to use the Solution in accordance with the previous terms, provided that the Customer’s intention to do so is intimated to Quod Orbis. If the Licensee continues to use the Solution after Quod Orbis notifies the Customer of such changes, the Licensee will be deemed to have accepted the updated terms, except to the extent prohibited by applicable law. No other variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

7.4       If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. The parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

7.5       No delay, omission or failure by either party to exercise any of its rights under this agreement shall be deemed to be a waiver of such rights or an acquiescence in the event giving rise to such right, but every such right may be exercised from time to time and as often as may be deemed expedient by the party exercising such right.

• Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
• This agreement sets out the entire agreement between the parties and supersedes all prior agreements, arrangements and understandings, oral or written, between the parties relating to the subject matter of this agreement. The standard terms and conditions of any member of the Licensee Group shall be without legal effect in transactions under this agreement.

• GOVERNING LAW AND JURISDICTION

8.1     This Licence 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.

• 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).