Terms and Conditions | Nuvovis Software Licensing

NUVOVIS SERVICE TERMS & CONDITIONS

SERVICE AGREEMENT

THIS SERVICE AGREEMENT (the "Agreement") is made and entered into upon the date you start using the service (the "Effective Date");

BETWEEN:

Nuvovis Limited, a company incorporated in the United Kingdom with registration number 7560083 and registered office 86-90 Paul Street, 4th Floor, London EC2A 4NE (the "Licensor"); and
service user (the "Licensee").

The above named shall collectively be known as "Parties", and each a "Party".

WHEREAS:

The Licensor wishes to enter in to an arrangement to license the use of the Service (defined below) to the Licensee for the Purpose (defined below).

IT IS HEREBY AGREED as follows:

1 Definitions and Interpretation

1.1 In this Agreement (including the Recitals and the Schedules), except to the extent that the context otherwise requires, the following terms shall have the meanings set forth below:

"Confidential Information" means the trade secrets, confidential or sensitive information or knowledge and know-how including the confidential financial, trade, customer, product, transaction, system and processing information and data of the relevant Party;

"Event of Force Majeure" means Acts of God, explosions, war or threat of war, terrorism or threat of terrorism, actions of the armed forces or government agencies pursuant to war, terrorism or threats thereof, fire, flood, adverse weather conditions, labour disputes, strikes, lockouts or other industrial actions irrespective of where such events occur, shortage of materials or services, detention or holding of goods by any customs authorities or any national or international airworthiness authority, riots or civil commotion, sabotage, earthquakes and natural disasters, acts, omissions, restrictions, regulations, prohibitions or measures of any governmental, parliamentary or local authority;

"Fees" means the amounts payable by the Licensee to the Licensor as set out in Schedule 2;

"Intellectual Property Rights" means patents, trade marks, service marks, rights in logos, rights in get-up, trade names, internet domain names, rights in designs, software, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, processes, rights in know-how and other intellectual property rights, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registration;

"Purpose" means manage, control and monitor the copying and use of the Licensee's software applications.

"Service" shall have the meaning as set out in Schedule 1 and shall include any constituent parts thereof, to be provided to the Licensee under the terms and conditions of this Agreement.

"Live License" shall have the meaning as set out in Schedule 1.

1.2 In this Agreement, unless the context otherwise requires:

(a) references to Recitals and Schedules are to be construed as references to the recitals and schedules to this Agreement and references to this Agreement include its Schedules;

(b) words importing the singular include the plural and vice versa, words importing a gender include every gender;

(c) references to a person shall be construed as including references to an individual, firm, issuer, corporation, unincorporated body of persons or any state or any agency thereof;

(d) any reference to a statutory provision shall include such provision and any regulations made in pursuance thereof as from time to time modified or re-enacted; and

(e) headings are for convenience of reference only and shall not affect the interpretation of this Agreement.

2 Term

2.1 This Agreement and the license granted hereunder shall take effect upon the Effective Date and shall continue in full force and effect for a period of one month or unless otherwise terminated in accordance with clause 8.

3 Grant of Rights

3.1 Subject to the Licensee's full compliance with the terms and conditions of this Agreement, the Licensor hereby grants to the Licensee a non-exclusive, non-sublicensable, non-transferable license to use the Service for the Purpose.

4 Restrictions

4.1 Except as otherwise expressly provided herein, the Licensee may not:

(a) copy, rent, lease, sell, transfer, assign, sublicense, dissemble, reverse engineer or decompile, modify or alter any part of the Service;

(b) use the Service on behalf of, share or permit to be shared, the Service with any third party;

(d) attempt or provide a means to execute any bulk download operations, cache or otherwise store any content other than for what would reasonably be regarded as normal use including for data backup;

(e) knowingly use the Service in connection with or to promote any products, services or materials that constitute, promote or are used primarily for the purpose of dealing in spyware, adware, spam, pornography or other offensive purposes;

(f) knowingly use the Service in any manner or for any purpose that violates any applicable law or regulation, or any right of any person including, but not limited to, Intellectual Property Rights, or privacy rights.

4.2 The Licensee's usage of the Service shall be limited to issuing a maximum of 1000 (one thousand) new licenses per month per Service user. Unactivated non-live licenses count towards the monthly limit. The Licensee's usage of the Service shall be limited to managing a total of 1000 (one thousand) Live Licenses per Service user.

5 Ownership

5.1 The Service and all Intellectual Property Rights contained therein, are and shall at all times remain the sole and exclusive property of the Licensor or its licensors.

6 Fees

6.1 Licensee shall pay to the Licensor the Fees as set out in Schedule 2, which shall be exclusive of any duties, bank fees, sales tax, or excise or similar taxes due, unless expressly stated therein. The Licensor shall invoice the Licensee in advance at the beginning of each month for the Fees.

6.2 Payment shall be made by the Licensee and received by the Licensor in full using the automated subscription payment systems provided by the Licensor.

6.3 The Licensor reserves the right to suspend or limit the availability of the Service if the Licensee fails to comply with clause 6.2 above.

7 Auditing

7.1 Both Parties agree to maintain accurate, complete and detailed records relating to this Agreement, from the Effective Date and for a period of six years following the termination or natural expiry of this Agreement.

8 Termination

8.1 Notwithstanding any other provisions contained herein, this Agreement may be terminated immediately:

(a) by the Licensor if the Licensee commits any breach of the terms or conditions of this Agreement and fails to remedy such breach to the Licensor's reasonable satisfaction within ten working days after receiving written notice from the Licensor requiring the Licensee to do so;

(b) by the Licensor or if the Licensee shall present a petition or have a petition presented by a creditor for the Licensee's winding up or the Licensee enters into compulsory or voluntary liquidation (other than for the purpose of a bona fide reconstruction or amalgamation), or the Licensee shall have a receiver of all or any of the Licensee's undertakings or assets appointed, or the Licensee shall be deemed by virtue of the applicable law to be unable to pay the Licensee's debts, or the Licensee shall cease to carry on business;

(c) by the Licensee if the Licensor commits any breach of the terms or conditions of this Agreement and fails to remedy such breach to the Licensee's reasonable satisfaction within ten working days after receiving written notice from the Licensee requiring the Licensor to do so.

8.2 Termination or natural expiration of this Agreement shall be without prejudice to any accrued rights of either Party or amounts payable in respect of the Fees, and shall not affect obligations which are expressed not to be affected by termination or expiry hereof.

8.3 Termination of this Agreement by the Licensor under Clause 8.1 above shall be  without prejudice to any claim which the Licensor may have against the Licensee for any loss or damage (including, without limitation, consequential loss or damage) suffered by the Licensor as a result.

8.4 In the event of termination or natural expiration of this Agreement, the Licensee undertakes that immediately upon the effective date of such termination of expiration, the Licensee and any parties acting on the Licensee's behalf shall:

(a) cease use of the Service; and

(b) within ten working days expunge, or where appropriate return to the Licensor, any and all of the Service that remains howsoever in the possession of the Licensor.

9 Representations and Warranties

9.1 Each Party represents and warrants to the other that it has the right and authority to enter into this Agreement and to perform all of its respective obligations and undertakings and to grant the rights set forth herein. Each Party further represents and warrants to the other that it is duly organised, validly existing and in good standing under the applicable laws, and that the execution, delivery and performance of this Agreement does not and shall not conflict with or violate any constitutional documents of such Party or the terms of any agreement between it and any third party.

9.2 The Licensor warrants that the Service does not violate or infringe any patent, copyright, trade mark, Intellectual Property Rights, rights of privacy, or rights of proprietary, of any third party.

9.3 It is the Licensee's responsibility to ensure that the Service is suitable for the Licensee's intended purposes. Licensor provides no warranties as to the function or use of the Service, whether express, implied or statutory, including, without limitation, any implied warranties of merchantability or fitness for particular purpose.

10 Third Party Software

10.1 The Service contains third party software. The use of third party software is governed by the terms of such software's license.

10.2 Third party software licenses and/or additional terms and conditions are located at https://www.nuvovis.com/downloads/license_agreements.zip and are made a part of and incorporated by reference into this Agreement.

10.3 The Licensee agrees to comply with the terms of the third party software license.

11 Liability

11.1 The Licensor shall not be liable to the Licensee for consequential, indirect, special or exemplary damages including but not limited to damages for loss of profits, business or anticipated benefits whether arising under tort, contract, negligence or otherwise whether or not foreseen, reasonably foreseeable or advised of the possibility of such damages.

11.2 No responsibility is assumed by the Licensor for any injury and/or damage to persons or property as a matter of product liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in any item or Service supplied by the Licensor under this Agreement.

11.3 The express terms of this Agreement are in lieu of:

(a) all warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise including but not limited to any implied warranties of merchantability or fitness for any particular purpose all of which are hereby excluded to the fullest extent permitted by law; and

(b) any implied terms as to the performance of computers or networks when used in conjunction with the Service, materials, information, goods, services, technology and/or editorial content provided under this Agreement.

11.4 Nothing in this Agreement shall exclude or limit either Party's liability for:

(a) death or personal injury resulting from the negligence of either Party or their servants, agents or employees;

(b) fraud or fraudulent misrepresentation; or

11.5 Nothing in this Agreement shall prevent the Licensor from claiming for amounts lawfully due under the terms of this Agreement or operate to limit any liability resulting from any infringement or breach of Intellectual Property Rights by the Licensee.

11.6 Where the Licensor is liable to the Licensee for negligence, breach of contract or any other cause of action arising out of this Agreement, such liability shall not exceed the amount equal to the total sum of the Fees (exclusive of all taxes) paid by the Licensee to the Licensor since the Effective Date.

12 Confidentiality

12.1 Each Party will treat as confidential all Confidential Information obtained from the other under this Agreement. The Parties agree that they will not without the prior written consent of the other disclose Confidential Information to any person or entity or use the same except for the purposes of complying with their respective obligations pursuant to this Agreement.

12.2 Clause 12.1 does not prohibit disclosure of Confidential Information to:

(a) the receiving Party's own personnel (including employees, agents and permitted contractors) who need to know of the Confidential Information provided that such personnel are first made aware of the confidential nature of the Confidential Information and the receiving Party's obligations in relation to it and themselves agree in writing to treat the Confidential Information confidentially; or

(b) the receiving Party's auditors, professional advisers, any person or organisation having a statutory or regulatory right to request and receive that information, including without limitation a relevant tax authority.

12.3 Clause 12.1 does not apply to information which the receiving Party can show by reference to documentary or other evidence:

(a) was rightfully in its possession before the start of discussions between the Parties relating to this Agreement;

(b) is already public knowledge or becomes so at a future date (save for as a result of breach of clause 12.1);

(d) is developed independently without access to, or use of or knowledge of, the Confidential Information.

12.4 The obligations of confidentiality under this clause 12 shall survive the termination of this Agreement until such time as the Confidential Information enters the public domain other than through the fault of the recipient Party.

13 Force Majeure

13.1 Neither Party shall be responsible to the other for any delay or failure in carrying out obligations under this Agreement if the delay or failure is caused by an Event of Force Majeure. The affected Party shall notify the other of any such circumstances as soon as possible.

14 Assignment

14.1 The Licensee shall not be entitled to assign, transfer or novate rights and obligations under this Agreement without prior written consent from the Licensor which shall not be unreasonably withheld.

15 Miscellaneous

15.1 Any notice required to be given pursuant to this Agreement shall be in writing and sent either by hand, by prepaid recorded delivery or registered post or by prepaid first class post, by fax confirmed by first class post, or by e-mail which has been received, as evidenced by receipt by the sender of a read receipt, to the relevant Party, and any such notice shall be deemed to have been received by the addressee at the time of delivery or in the case of prepaid first class post, two days after posting.

15.2 Any amendment or variation to this Agreement shall be made only by express written agreement between the Parties.

15.3 The failure of either Party to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time(s) thereafter, as a waiver of another or constitute a continuing waiver.

15.4 Without prejudice to the rights of either Party in respect of actions relating to fraudulent misrepresentation, this Agreement and any documents referred to herein constitute the entire understanding between the Parties with respect to the subject matter thereof and supersedes all prior agreements, negotiations and discussions between the Parties relating thereto.

15.5 The Parties agree that monetary damages may not be a sufficient remedy for the damage which may accrue to a Party by reason of failure by any other Party to perform certain of its obligations hereunder. Any Party shall therefore be entitled to seek injunctive relief, including specific performance, to enforce such obligations.

15.6 The unenforceability of any single provision of this Agreement shall not affect any other provision hereof. Where such a provision is held to be unenforceable, the Parties shall use their best endeavours to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision.

15.7 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

15.8 Nothing in this Agreement shall be deemed to constitute a partnership between the Parties nor, save as expressly set out herein, constitute either Party the agent of the other Party.

15.9 This Agreement shall be governed by and construed in accordance with English law and each Party irrevocably submits to the exclusive jurisdiction of the English courts over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability.

SCHEDULE 1 - SERVICE

Overview

The Service includes a "Portal" user interface (either the Salesforce App provided by Nuvovis or the web Nuvovis Portal), the Nuvovis cloud service running in Google AppEngine known as "Genux-B" and the Licensing Library provided by Nuvovis and linked to the Licensee's software application. The service may optionally include the Nuvovis cloud service API which the Licensee may use to integrate with their own servers.

The Licensee's developers use the Nuvovis Licensing Library to prevent the Licensee's application from running or limit some of the application's functionality unless a license has been issued using the Portal or the service API.

The Portal or API is used to limit and control the Licensee's end users' use of the Licensee's application. A Software License includes the name of the end user, expiry period or date and any licensed settings used by the application e.g. enabling specific functionality. When a Portal or API user has stored a Software License in Genux-B a unique License Key is generated and stored in the custom object.

The License Key is communicated to the application end user, typically by email. The end user provides the application with the License Key and it is used by the Licensing Library to ask Genux-B for the license information. Genux-B records the end user's use of the Software License.

Portal or API users can query the use of Software Licenses and view the usage information stored in Genux-B.

Fixed Licenses

Flags in the Software License object determine whether the license is locked to a machine or whether a license is a floating license. For example you can have a perpetual license which is not locked to a machine nor floating and is merely "watermarked" with the name of the application's licensee, allowing the end user to move the license to more than one machine. Alternatively you can have a machine locked license which is not allowed to move.

Licenses are stored in a file on the machine where the application runs. Licenses are also stored in Genux-B. When the application checks for a valid license if a local file is found the settings are checked using the file. If no file is found the settings are checked using Genux-B.

If the Licensee wants to change license settings this can be done using the Portal to update the license settings in Genux-B and getting the application to delete the license file.

Live Licenses (Floating Licenses)

Live Licenses also cache their settings in a local file. However, after the session refresh period (a number of minutes) a new license check will not re-use the local file but refresh the license from Genux-B. This allows Portal users to adjust license settings dynamically.

If the application is unable to refresh the license because it cannot communicate with Genux-B the license will be marked as "Stale". It is up to the application to decide what to do with a Stale license. For example it could warn the user but continue to work for 3 days.

For an application's license to float from one user or one machine to another the application which currently holds the valid license must "release" the license by making a call to the Licensing Library. This will remove the local license file and free up the slot in Genux-B.

Multiple Licenses

To simplify administration multiple licenses can be issued to a customer with a single key.

SCHEDULE 2 - FEES

Nuvovis charges $36.00 per Portal User per month. Nuvovis charges $50.00 per Salesforce Portal User per month.

As stated in Clause 4.2 for each Service user you can create up to 1000 new licenses (of any kind) per month and you can have up to 1000 Live (Floating) Licenses in use. Unactivated non-live licenses count towards the monthly limit. The limits are for the whole organisation so, for example, if you have 3 Salesforce users, one of your users can create up to 3000 new licenses and all your Salesforce users can share both CRM data and Software License data.

You may need more Nuvovis Portal Users than Salesforce Users. For example if 4 users need to manage 10,000 Live Licenses you need 6 Portal Users in addition to 4 Salesforce Users.

Note that you may also need to review your Salesforce environment limits, for example storage limits.

Nuvovis changes $180 per month for the use of the cloud service API and this includes 5 Portal Users. Service API users get read-only access to their license data and logs.

Service API subscribers can be upgraded to the Partner subscription at the discretion of Nuvovis. Partners pay $4320 annually. Partners run Nuvovis services in their own Google Cloud environment.