Self-Managed software licence agreement
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS:
In this agreement, the words and expressions within this agreement shall be defined in the Schedule attached hereto.
1.2 INTERPRETATION:
In this agreement (including the introduction and schedules) unless the context otherwise requires:
a) reference to a person includes a legal person (such as a limited company) as well as a natural person;
b) clause headings are for convenience only and shall not affect the construction of this agreement;
c) reference to “including” or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words;
d) reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation; and
e) words in the singular include the plural and vice versa.
2. DOWNLOAD AND ACCESS
2.1 The Customer shall download a copy of the Software from Tyk’s website or an authorised public depository. For the avoidance of doubt, such download will not permit the Customer to unlock the Software.
2.2 On receipt of the Fee, in accordance with clause 5, Tyk shall provide the Customer with a license key (“License Key”) to unlock the Software for the Term. The License Key will be emailed to the email address provided by the Customer on its application to download the Software or set out on the Front Sheet (as appropriate). In respect of a Renewal Term, the License Key may be provided in advance of payment of the Fee.
3. LICENCE
3.1 Subject to full payment of the applicable Fee, and in consideration of the parties’ mutual obligations under this agreement, Tyk grants to the Customer a non-transferable, non-exclusive, revocable and limited licence for the Term and any subsequent Renewal Term to use the Software at the Premises only in accordance with the terms herein and any applicable Front Sheet.
3.2 In relation to scope of use:
a) for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for any commercial or non-commercial purpose of the Customer on the Premises;
b) without prejudice to clause 3.3(h) and (i), the Customer shall be permitted to create Customisations of the Software; and
c) the Customer may not use the Software other than as specified in clause 3.1 and 3.2 without the prior written consent of Tyk, and the Customer acknowledges that additional fees may be payable on any change of use approved by Tyk.
3.3 The customer shall:
a) comply with all applicable laws and regulations with respect to its activities under this agreement;
b) obtain and maintain all necessary licenses, consents, and permissions necessary for Tyk to perform its obligations under this agreement;
c) ensure that the software is not deployed in excess of the number of permitted Tyk Gateways;
d) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to Tyk on request from time to time;
e) not provide any third party with access to the License Key for the duration of the Term and any subsequent Renewal Term;
f) notify Tyk as soon as it becomes aware of any unauthorised use of the Software by any person;
g) pay, for broadening the scope of the licences granted under this agreement to cover the unauthorised use by a third party, an amount equal to the fees which Tyk would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 5.5 from such date to the date of payment;
h) without prejudice to clause 3.2(b), not translate, modify, adapt or create derivative works from the Software;
i) without prejudice to clause 3.2(b), not attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that the Customer is permitted to do so under applicable law in circumstances under which Tyk is not lawfully entitled to restrict or prevent the same), including in order to:
i) build a competitive product or service;
ii) build a product using similar ideas, features, functions or graphics of the Software; or
iii) copy any ideas, features, functions or graphics of the Software;
j) not attempt to interfere with the proper working of the Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Software or any associated website, computer system, server, router or any other internet-connected device;
k) not introduce any software virus or other malware that may infect or cause damage to the Software;
l) not obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, the Software;
m) not to resell the Software to third parties or allow or permit a third party to do so unless permitted by way of a reseller agreement between Tyk and the Customer; or
n) not use the Software:
i) for military purposes;
ii) to upload, store, post, email, transmit or otherwise make available any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Software, as updated by Tyk from time to time (“Prohibited Content“);
iii) to impersonate any person or entity or otherwise misrepresent the Customer’s relationship with any person or entity;
iv) to engage in any fraudulent activity or further any fraudulent purpose;
v) to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;
vi) to “stalk” or otherwise harass another person;
vii) to provide false identity information to gain access to or use the Software; and/or
viii) to collect or store personal data about other users in connection with the prohibited conduct and activities set out in clauses 3.3(n);
and shall not permit any third party to do any of the foregoing.
3.4 The customer shall not:
a) sub-license, assign or novate the benefit or burden of this agreement in whole or in part;
b) allow the Software to become the subject of any charge, lien or encumbrance; and
c) deal in any other manner with any or all of its rights and obligations under this agreement,
3.5 without the prior written consent of Tyk.
3.7 Tyk may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this agreement, provided that it gives written notice to the Customer.
3.8 The Customer may request to increase and/or extend the number of permitted Tyk Gateways, provided that the Customer pays such additional fees as determined by Tyk. Tyk reserves the right to refuse such Customer request; such refusal shall not give rise to a Customer right to terminate under this agreement. For the avoidance of doubt, the Customer shall not be permitted to decrease the number of permitted Tyk Gateways under this agreement.
3.9 The Customer shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the Customer in order to access or use the Software (“ID”). The Customer acknowledges and agrees that the Customer will be solely responsible for all activities that occur under such ID. The Customer shall promptly notify Tyk upon becoming aware of any unauthorised access to or use of the Software, and provide all reasonable assistance to Tyk to bring an end to such unauthorised access or use.
3.10 The Customer shall permit Tyk to inspect, audit and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this agreement, for the purposes of ensuring that the Customer is complying with the terms of this agreement, provided that Tyk provides reasonable advance notice to the Customer of such inspections and audits, which shall take place at reasonable times.
3.11 The Customer shall be responsible for all access to and use of the Software by its users. The Customer shall ensure that its users are aware of the terms of this agreement. The Customer shall only provide its users with access to the Software via the access method provided by Tyk. The Customer shall immediately notify Tyk in the event that the Customer becomes aware of breach of this agreement by its users.
3.12 It is the Customer’s responsibility to ensure it has equipment (of appropriate specification and compatible with the Software) and internet connection. The Customer acknowledges that it is responsible for all charges for internet access (including mobile data usage) charged by its internet service provider.
3.13 The Customer shall be required, within 7 days of the Effective Date, to appoint a Customer contact who will be available to liaise with Tyk, and respond to queries from Tyk in respect of this agreement within a reasonable timeframe (“System Administrator”). For the duration of this agreement, the Customer shall promptly notify Tyk of any change to the System Administrator (including, without limitation, contact details). In the absence of the Customer’s appointment of a System Administrator, the default appointment shall be the individual who applied to use the Software. In the event that the System Administrator fails to respond to Tyk, Tyk reserves the right to charge a reasonable fee for time spent contacting the System Administrator and/or contacting the Customer in respect of its failure to abide by its notification requirement in this clause 3.11.
4. SUPPORT (THE TYK SUPPORT SERVICE LEVEL AGREEMENT SUPERSEDES THIS SECTION)
4.1 At its sole discretion, Tyk may provide support and troubleshooting services in respect of the Software (“Support Services”) by way of any channel Tyk selects. However Tyk shall not be under an obligation to provide Support Services under this agreement and, in any event, Support Services shall not be supplied in respect of Community Access. Time shall not be of the essence in respect of any Support Services. In the event that the Customer requires additional support services, it shall be required to enter a separate support agreement with Tyk (details of which are available on request).
4.2 Subject to clause 4.1:
a) Tyk may issue modifications to the Software by way of a local fix or patch of the Software or another suitable solution in the absolute discretion of Tyk. Tyk reserves the right to charge in respect of any modification, new release and/or new version in respect of the Software;
b) the Customer acknowledges and agrees that Tyk’s provision of the Support Services (if any) shall be conditional upon the Customer promptly providing all reasonable assistance, information and decision-making as reasonably required by Tyk from time to time, which it agrees to give;
c) Tyk shall not support the Software if the Customer fails to maintain the Software at Tyk’s specified release level unless otherwise agreed between the parties in writing;
d) Tyk may make changes to the Support Services without notice to the Customer;
e) Tyk shall not provide Support Services where faults arise from misuse or incorrect use of the Software, use of the Software in combination with equipment or software not designated by Tyk for use with the Software, relocation or installation of the Software by anyone other than Tyk, operator error and/or otherwise at the reasonable justification of Tyk.
4.3 The Customer shall not be permitted to use an alternative company to support and/or maintain the Software.
4.4 The Customer shall reimburse any reasonable travel or subsistence expenses incurred by Tyk where such expenses are incurred wholly and exclusively for the purpose of providing on-site support, provided that any request for reimbursement is in the form of an invoice accompanied by receipts.
5. FEE
5.1 In relation to the Software, the Customer shall pay to Tyk the Fee in full and in advance of Tyk providing the License Key.
5.2 Without prejudice to the terms herein, the Customer acknowledges that, once the License Key has been transmitted by Tyk to the Customer, the Customer shall not be entitled to a refund (in whole or in part).
5.3 Tyk reserves the right to charge the Customer a fee in relation to Community Access.
5.4 All sums payable under this agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
5.5 If the Customer fails to make any payment due to Tyk under this agreement by the due date for payment, then, without limiting Tyk’s remedies under clause 13, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.6 The Fee is subject to review and increase by Tyk upon 1 calendar months’ notice, provided that no such increase will apply prior to the end of the first 12 calendar months from the Effective Date unless otherwise agreed on the Front Sheet.
5.7 Without prejudice to any other right or remedy available to Tyk and without giving the Customer permission to exceed the number of Tyk Gateways set out in the Front Sheet, in the event that the Customer exceeds the number of permitted Tyk Gateways, (“Over Usage”), the Customer shall (a) pay to upgrade its licence to include additional Tyk Gateways; or (b) pay the Penalty Fee in relation to its Over Usage; such option to be determined at the Customer’s discretion. It is the Customer’s obligation to monitor and ensure it does not exceed its permitted Tyk Gateways. For the avoidance of doubt, the Customer agrees to pay for its Over Usage by way of the Penalty Fee in the event that it does not upgrade to include the additional Tyk Gateways.
5.8 Fees are payable, in full, upon delivery and without deduction, set off or withholding of any kind. In the event of any dispute as to the amount of an invoice, the Customer shall pay the amount in full pending the resolution of any dispute and Tyk shall make any adjustment due immediately upon such resolution.
6. CONFIDENTIALITY AND PUBLICITY
6.1 Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this agreement) 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 information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, 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.
6.2 Subject to clause 6.3, either party shall be permitted to make, or permit any person to make, any public announcement concerning this agreement, without the prior written consent of the other parties unless otherwise agreed on the Front Sheet (which shall not include the commercial terms, and Fees contained within this agreement and not on Tyk’s website).
6.3 Tyk reserves the right to use descriptions and/or examples of the Customer’s use of the Software in its press releases, marketing channels and any other publicity materials. Tyk may also reference and link to the Customer’s website.
6.4 The Customer shall display the “Powered by Tyk” logo and/or the Tyk logo on the Tyk developer portal.
6.5 The Customer acknowledges and agrees that Tyk may use aggregate data derived from Customer’s use of the Software provided that Tyk has anonymised such data. Tyk may use in its marketing and advertising the total number of users, total number of stored claim records, total transaction volumes, and other aggregate statistics to attract new customers.
7. EXPORT
7.1 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 licence or other governmental approval without first obtaining such licence or approval.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer acknowledges that all Intellectual Property Rights in the Software and the Tyk brand belong and shall belong to Tyk or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement. Except as expressly permitted by this agreement, the Customer may not use any of Tyk’s Intellectual Property Rights without Tyk’s prior written consent.
8.2 The Customer acknowledges that it may create Intellectual Property Rights by improving or suggesting improvements of Software to Tyk. Any and all improvements to the Software and/or Support Services suggested by the Customer and developed by Tyk which result in the creation of Intellectual Property Rights shall be owned by Tyk. The Customer hereby assigns any and all rights to such Intellectual Property Rights in respect of the Software and/or Support Services to Tyk and waives its moral rights in respect thereof. The Customer shall execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this clause 8.2.
8.3 The Customer acknowledges that it may create Intellectual Property Rights in any customisations to the Software (“Customisations”). Any and all Customisations developed by the Customer which result in the creation of Intellectual Property Rights shall be owned by the Customer. The Customer grants Tyk a perpetual, non-exclusive, royalty free, non-revocable and worldwide license to use and develop the Customisations.
8.4 The Customer shall promptly bring to the attention of Tyk any improper or wrongful use of any Intellectual Property Rights of Tyk which comes to the Customer’s notice. The Customer shall assist Tyk in taking all steps to defend Tyk’s Intellectual Property Rights, but not institute legal proceedings of its own accord.
9. DATA PROTECTION
9.1 Both parties will comply with all applicable requirements of the applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136EC) and the Privacy and Communications Regulations 2003 (SI 2003/2426) as amended). This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
10. SUPPLIER’S WARRANTIES
10.1 Tyk warrants that:
a) it has the right to enter into this agreement and to provide the Software as contemplated by this agreement; and
b) the Software shall, under normal operating conditions, substantially conform to the functionality described in documentation stated in the Front Sheet or, in the absence of a Front Sheet, as described on Tyk’s website (which may be updated from time to time).
10.2 If any of the warranties in clause 10.1 is breached, the Customer must notify Tyk as soon as possible. The Customer must give Tyk a reasonable time to fix the problem, including (in Tyk’s discretion) by making available a corrected version of the Software (as the case may be) or a reasonable way to work around the problem that is not materially detrimental to the Customer and/or by re-performing any relevant services. This will be done without any additional charge to the Customer. If Tyk is able to do this within a reasonable time, this shall be the Customer’s sole and exclusive remedy in relation to such breach and Tyk will, subject to the terms herein, have no other obligation or liability in relation to such breach.
10.3 Tyk does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data.
10.4 Tyk does not warrant that the use of the Software will be uninterrupted or error-free.
10.5 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
10.6 The Customer acknowledges that any Open-Source Software provided by Tyk is provided “as is” and expressly subject to the disclaimer in clause 11.2.
10.7 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
11. INDEMNITIES
11.1 The Customer shall indemnify Tyk and its affiliates against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Tyk arising out of or in connection with any claim by a third party as a result of the Customer or its users’ use of the Software in breach of this agreement (“Tyk Claim”).
11.2 Subject to clause 12.1, Tyk shall indemnify the Customer against all damages and legal costs finally awarded against the Customer by a court of competent jurisdiction and/or amounts paid by the Customer further to a final settlement approved by Tyk, together with associated legal fees reasonably incurred by the Customer, as a result of any claim by a third party that the access and use, in accordance with this agreement, by the Customer of the Software, excluding Open-Source Software, infringes the Intellectual Property Rights of any third party (“Customer Claim”). This indemnity shall only apply to Customer Claims supported by a court judgement. It shall not apply in respect of alleged Customer Claims. For the avoidance of doubt, clause 11.2 shall not apply where the Customer Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer 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 Tyk 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.
11.3 For the purpose of this clause 11.3, a Tyk Claim and a Customer Claim shall each be considered a “Claim”. If any third party makes a Claim, or notifies an intention to make a Claim against a party, the indemnitor’s obligations are conditional on the indemnitee:
a) as soon as reasonably practicable, giving written notice of the Claim to the indemnitee, 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 the indemnitor (such consent not to be unreasonably conditioned, withheld or delayed); and
c) giving the indemnitor and its professional advisers reasonable access at reasonable times (on reasonable prior notice) to premises, officers, directors, employees, agents, representatives or advisers for the purposes of assessing the Claim.
11.4 If any Customer Claim is made, or in Tyk’s reasonable opinion a claim is likely to be made, against the Customer, Tyk may at its sole option and expense:
a) procure for the Customer 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 the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination),
11.5 provided that if Tyk modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 10 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this agreement been references to the date on which such modification or replacement was made.
11.6 Notwithstanding any other provision in this agreement, clause 11.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any third party software.
11.7 Clauses 11.2-11.4 constitute the Customer’s exclusive remedy and Tyk’s only liability in respect of Customer Claims and, for the avoidance of doubt, is subject to clause 12.
12. LIMITS OF LIABILITY
12.1 Except As Expressly Stated In Clause 12.2:
a) Tyk shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), 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:
i) special damage even if Tyk was aware of the circumstances in which such special damage could arise;
ii) loss of profits;
iii) loss of anticipated savings;
iv) loss of business opportunity;
v) loss of goodwill; and/or
vi) loss or corruption of data.
b) Tyk shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:
i) the use of the Software except for its normal intended purpose;
ii) any adaptation or modification of any Software, or integration or combination with any other equipment, software, product or material not supplied by Tyk, in each case carried out by anyone other than the Tyk or without Tyk’s express written consent;
iii) any defect arising in the Software as a result of misuse, wilful damage, negligence on the part of anyone other than Tyk, abnormal operating conditions or any failure by the Customer to follow any instructions of Tyk as to use;
iv) the compliance by Tyk with any design, specification or instructions provided by the Customer or on the Customer’s behalf; or
v) the continued use of a version or release of the Software after Tyk has made an alternative version or release of the Software available to the Customer, to the extent that any claim in respect of which Tyk would otherwise be obliged, under this agreement, to indemnify would have been avoided by the use of such alternative version or release;
c) the total liability of Tyk, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed:
i) an amount equal to the Fee paid to Tyk in the 12 month period immediately preceding the first incident giving raise to the loss; or
ii) for an incident in the first 12 months of this agreement, an amount equal to the paid and projected Fees for that period; and
d) the Customer agrees that, in entering into this agreement, 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 agreement, or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) Tyk shall have no liability in any circumstances otherwise than in accordance with the express terms of this agreement.
12.2 The exclusions in clause 12.1 shall apply to the fullest extent permissible at law, but Tyk does not exclude liability for:
a) death or personal injury caused by the negligence of Tyk, its officers, employees, contractors or agents;
b) fraud or fraudulent misrepresentation; or
c) any other liability which may not be excluded by law.
12.3 All dates supplied by Tyk for the delivery of the Software shall be treated as approximate only. Tyk shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
12.4 All references to “Tyk” in this clause 12 shall, for the purposes of this clause, be treated as including all employees, subcontractors and suppliers of Tyk and its affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
13. TERM AND TERMINATION
13.1 Subject to the Front Sheet (if any), this agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for the Term and thereafter renew automatically for successive terms of equivalent duration (each a “Renewal Term”) unless and until terminated by either party giving written notice to that effect (such notice to expire at the end of the Term or any subsequent Renewal Term only).
13.2 Either party may terminate this agreement, at any time, by giving the other written notice if the other:
a) materially breaches any term of this agreement and it is not possible to remedy that breach;
b) materially breaches any term of this agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so; or
c) becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an is order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
13.3 Without prejudice to clause 13.2, Tyk may, in addition, and without liability, terminate this agreement, or alternatively, may suspend access to and use of the Software, by giving the Customer written notice if:
a) any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
b) any provision of clause 3 is breached; and/or
c) the Customer is in persistent or repeated breach of any of its obligations under this agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
13.4 In relation to suspensions under clause 13.3(a), access to the Software will be restored promptly after Tyk receives payment in full and cleared funds.
13.5 Fees shall remain payable during any period of suspension notwithstanding that the Customer may not have access to the Software.
13.6 The Customer may request to partially terminate the agreement in respect of the Software as defined on the Front Sheet. The Customer acknowledges that a subsequent decision to terminate will be determined at Tyk’s sole discretion. The Customer shall not be entitled to a refund in respect of any partial termination under this clause 13.6.
14. CONSEQUENCES OF TERMINATION
14.1 The Customer acknowledges that, due to the nature of the Software, and for the duration of the Term and any subsequent Renewal Term, it shall not be entitled to a refund (in full or in part) in respect of the Software for the Term and/or Renewal Term (unless otherwise agreed on a Front Sheet).
14.2 Notwithstanding clause 13.1, the Customer acknowledges and agrees that the Software will, or may, automatically “time out” (that is to say, cease to operate) at the end of the Term and any subsequent Renewal Term.
14.3 Upon termination of this agreement for any reason:
a) the License Key shall expire and the Customer will not be able to access the Software;
b) the Customer shall immediately cease to access, and discontinue all use of, the Software;
c) all licenses granted under this agreement shall terminate;
d) all amounts payable to Tyk by the Customer shall become immediately due and owing. For the avoidance of doubt, no refund of fees paid in advance shall be due in respect of any unexpired portion of the then-current term;
e) the Customer acknowledges that Tyk may audit any computer system on which the Software has been deployed in order to verify compliance with this agreement;
f) at the Customer’s request and upon payment of Tyk’s then-current daily rate related thereto, upon expiration or termination of this agreement, Tyk may provide reasonable termination assistance services (“Termination Assistance Services”) to the Customer and/or a successor service provider designated by the Customer; and
g) Tyk may destroy or otherwise dispose of any Customer data in its possession on termination in accordance with clause 9;
h) the Customer shall pay for any use of the Software post termination in breach of this clause 14.3.
14.4 If so requested by Tyk at any time by notice in writing to the Customer, the Customer shall promptly:
a) destroy or return to Tyk all documents and materials (and any copies) containing, reflecting, incorporating or based on Tyk’s confidential information including without limitation the Software;
b) erase all confidential information from its computer and communications systems and devices used by it (including those of any group company), or which is stored in electronic form (including without limitation the License Key);
c) erase all the confidential information which is stored in electronic form on systems and data storage services provided by third parties; and
d) certify in writing to Tyk that it has complied with the requirements of this clause 14.4.
14.5 The termination of this agreement for any reason will not affect:
a) any accrued rights or liabilities which either party may have by the time termination takes effect; or
b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination.
15. FORCE MAJEURE
15.1 Neither party shall have any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from any event beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than 3 calendar months, either party may terminate this agreement by written notice to the other party.
16. GENERAL
16.1 Tyk reserves the right to modify the Software, any end user licence agreement and/or privacy policy and to impose new or additional terms or conditions on the Customer. Such modifications and additional terms will be communicated to the Customer, and, if accepted, will be effective immediately and will be incorporated into this Agreement. In the event that the Customer refuses to accept such changes, Tyk will have the right to terminate this agreement. If Tyk is required to make these changes by law, these changes will apply automatically in respect of this agreement.
16.2 All notices and consents relating to this agreement (but excluding any proceedings or other documents in any legal action) must be in writing. Notices must be sent to the address of the recipient set out in the Front Sheet or otherwise notified by the relevant party in accordance with this agreement. Notices shall be sent by hand, by first class recorded delivery or registered post or other form of certified or registered mail (and sent by air mail if posted to or from a place outside the United Kingdom), or email and shall be treated as having been delivered:
a) if sent by hand, when delivered;
b) if sent by certified or registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting); and
c) if sent by email, at close of business on the next working day after delivery to the recipient of the email.
This clause does not apply to the service of any proceedings or other documents in any legal action.
16.3 Unless the parties expressly agree otherwise in writing, if a party:
a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this agreement or by law; or
b) agrees not to exercise or to delay exercising any right or remedy provided under this agreement or by law;
then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.
16.4 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.5 If any provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole. If any provision of this agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
16.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.7 All variations to this agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
16.8 Except to the extent that this agreement expressly provides otherwise, nothing in this agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.
16.9 A person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.10 The Customer shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
16.11 Each party acknowledges that, in entering into this agreement and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents (“Representation”).
16.12 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
16.13 This agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to the subject matter.
16.14 No failure or delay by Tyk 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.
16.15 This agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this agreement or its subject matter, but Tyk is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.
SCHEDULE
The words and expressions contained within the agreement shall have the following meanings:
Community Access: access to the Software for use in connection with one Tyk Gateway for the Community Access Term (as defined);
Community Access Fee: a fee of £0 per annum and consideration of a mutual exchange of promises subject to clause 5.3 unless otherwise stated on the Front Sheet;
Community Access Term: a term of 12 calendar months unless otherwise stated on the Front Sheet;
Customisation: a plug-in or extension that adds a specific feature to the Software but does not extend to source code amendments to the Software;
Effective Date: the date on the Front Sheet, or in respect of the Community Access or Pro Access, the date which the Customer first accesses the Software, or creates an ID (as defined) by way of Tyk’s website (whichever is the earlier);
Enterprise Access: access to the Software on a bespoke basis as agreed to in writing between the parties;
Enterprise Access Fee: as defined on the Front Sheet;
Fee: in respect of the Community Access, Pro Access or Enterprise Access, the Community Access Fee, the Limited Pro Access Fee, the Unlimited Pro Access Fee or the Enterprise Access Fee respectively as may be further defined on a Front Sheet and subject to clause 5;
Front Sheet: additional terms agreed between the parties in Tyk’s standard format and defined as a “Front Sheet”;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks 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;
Limited Pro Access1: access to the Software for use in connection with one Tyk Gateway for the Pro Access Term;
Limited Pro Access2: access to the Software for use in connection with two Tyk Gateways for the Pro Access Term;
Limited Pro Access5: access to the Software for use in connection with five Tyk Gateways for the Pro Access Term;
Unlimited Pro Access: access to the Software for use in connection with unlimited Tyk Gateways (which, for the avoidance of doubt, shall be subject to the restrictions in this agreement) for the Pro Access Term;
Limited Pro Access1, Limited Pro Access2, Limited Pro Access5 and Unlimited Pro Access shall together be defined as “Pro Access“;
Open-Source Software: open-source software as defined by the Open Source Initiative or the Free Software Foundation which shall include Tyk Open-Source Software;
Penalty Fee: the fee payable by the Customer for its Over Usage of the Software as determined solely by Tyk;
Premises: the environment from which the Customer is permitted to access the Software which shall be limited to one single logical group;
Pro Access Term: a term of 12 calendar months unless otherwise stated on the Front Sheet;
Software: as defined on the Front Sheet and used by the Customer during the subsistence of this agreement which shall exclude any Open Source Software or in respect of the Community Access or Pro Access, the software as detailed on Tyk’s website;
Term: as defined on the Front Sheet, or in respect of the Community Access or Pro Access, the Community Access Term or Pro Access Term respectively;
Tyk Gateway: a network node connecting two networks that use different protocols; and
Tyk Open-Source Software: Tyk software that has been developed for open-source purposes and is provided to the general public without charge and subject to additional open source license terms.
