In consideration of the mutual promises contained herein, the parties hereby agree as follows:
“Confidential Information” means any and all information disclosed by either party to the other which is designated as confidential or proprietary, or which, by its nature, the receiving party should reasonably understand to be confidential, including but not limited to, financial information, product plans, business plans, trade secrets, technology diagrams, designs, drawings, sketches, flow charts, technology, documentation or any other proprietary information, whether transmitted orally, in writing, or by any other media.
“Licensed Product” is defined as eTS Software Services and its components in standard formats (API, executable codes, object codes, DLLs, Scripts, HTMLs, XMLs, text files) that are compiled and in “ready to use” state. Details and scope are in the Statement of Works.
“Intellectual Property Rights” means all worldwide trade secrets, know-how, patents, copyrights, mask work rights, trademarks, service marks, moral rights and other proprietary rights, and all applications and registrations therefore.
“Technical Project Lead” means the assigned Technical Project Leads for each party.
“eTS” means Travel Safety Ltd, trading as eTravelSafety (eTS). A company registered in England and Wales (Company Number: 10471968) with offices at 161 Holme Lacy Road, Hereford, HR2 6DG.
“Licensee” means the buyer of products, services or software from eTS.
2.1 License Grant. Subject to the terms and conditions of this Agreement including terms and conditions in the agreed Statement of Works (SoW) which contains, License Fees, and Delivery Timelines, eTravelSafety hereby grants Licensee a nonexclusive worldwide license to use the Licensed Product. Licensee shall not:
(a) grant a security interest in, or otherwise attempt to transfer any ownership or proprietary rights to any portion of the Licensed Product;
(b) sub-license Licensed Product to anyone or entity, including but not limited to an end customer;
(c) assign, rent, lease, grant a security interest in, or otherwise attempt to transfer any ownership or proprietary rights to any of the Licensed Product;
(d) modify, translate, reverse engineer, decompile, disassemble, or otherwise attempt to duplicated or derive the source code of the Licensed Product except for conditions described in the SoW or as otherwise permitted under applicable law.
(e) remove any proprietary notices or labels on or in any of the Licensed Product;
2.2 Intended Use. Licensee acknowledge that the Licensed Product is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility or common carrier purposes. eTS disclaims any express or implied warranty of fitness for such uses or any unapproved uses in general.
2.3 Reservation of Rights. No right, title or interest in or to any trademark, service mark, logo or trade name or intellectual property of eTS or its licensors is granted under this Agreement. All rights not expressly granted to Licensee herein are reserved by eTS and its suppliers. eTS and its suppliers hereby retain all right, title and interest in and to the Licensed Product and all updates, modifications, improvements or enhancements made by eTS, and all Intellectual Property Rights therein that are unrelated to the Licensee Content. The Licensed Product is protected by copyright and other intellectual property laws and by international treaties. Similarly, no right title or interest is granted by Licensee to any content or data provided by Licensee (the “Licensee Content”) and all rights in and to such content and data are reserved by Licensee.
2.4 Security. Licensee shall ensure that the Licensed Product is stored in a secure, managed facility either
(i) owned and operated by Licensee; or
(ii) owned and operated by a third-party hosting service provider that has entered a written agreement with Licensee providing for at least the same levels of protections regarding the Licensed Product as this Agreement. Licensee shall at all times remain responsible for the security of the Licensed Product at a third-party facility and for the acts or omissions of any third party hosting service provider.
2.5 eTS Obligations
(a) eTS shall provide the options of
(i) hosted service and
(ii) instalment behind Licensee’s firewall, for the Licensed Product in accordance with mutually agreed service levels and continue to support the Licensed Product in accordance with the terms of this Agreement. During the term of this Agreement, eTS agrees not to grant a license or otherwise provide access to the Licensed to any publisher or company.
(b) eTS shall require any person or entity acquiring (“Acquirer”) eTS and or Licensed Product to support and by fully bound by the obligations of this Agreement and shall provide written signed confirmation by Acquirer to Licensee prior to acquisition, for a period of time that is equal to the lifetime of this license.
3.1 Fees. In consideration of the licenses granted in Section 2.1, Licensee shall pay to eTS the license fees and other applicable fees specified in SOW according to the payment schedule.
3.2 Taxes. All Fees specified hereunder do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to the licensing of Licensed Product, including without limitation excise, sales, use, property, license, value-added taxes, franchise, income, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes which are imposed by the United Kingdom based on the net income of eTS. Any such taxes which are otherwise imposed on payments to eTS shall be the sole responsibility of Licensee.
4.1 eTS shall deliver Licensed Product as described in this SoW.
4.2 Warranty. eTS shall provide a software warranty as explained in this document.
4.3 Technical Support. eTS shall provide technical support as explained in this document.
5.1 Limited License. To the extent that a party needs to use the other party’s trademarks, marks, trade names and service marks (“Marks”) for the purpose of performing its obligations or exercising its rights under this Agreement, it shall seek the approval of such other party for each such use. Thereafter and during the term of this Agreement, such party shall have the qualified, non-transferable, revocable right to use the Mark in the manner and for the purpose approved by such other party. All representations of the other party’s Marks that a party intends to use shall be submitted for approval to the other party prior to use and shall be exact copies of those used by the Mark owner. Each party shall comply with any trademark guidelines of the other party.
5.2 Limitations. Neither party may use the Marks of the other party:
(a) in association with any material that is pornographic, obscene, illegal, defamatory, violent, or otherwise objectionable (including without limitation using the Marks in any advertisements that contain such material or using the Marks in any publications or Web pages that contain such material); or
(b) in any manner that reflects poorly on or may damage the goodwill associated with or reputation of the Marks’ owner.
5.3 Reservation of Rights. Except as expressly set forth in Section 5.1 above, nothing in this Agreement grants, or should be construed to grant, any right, title, or interest in or to a party’s Marks to the other party. At no time shall a party challenge or assist others to challenge the Marks of the other party, or registrations thereof, or attempt to register any trademarks, service marks, trade names or other marks confusingly similar to the other party’s. All goodwill associated with the use of the Marks shall inure solely to the benefit of the owner of the Marks. All rights not granted herein are hereby reserved to the owner of the Marks.
6.1 Non use and Non disclosure. Both parties acknowledge that the Confidential Information obtained by either party pursuant to this Agreement constitutes valuable trade secrets of the disclosing party. Each party agrees to use Confidential Information solely in accordance with the provisions of this Agreement and not to disclose, or authorize to be disclosed, Confidential Information to any third party, without the other party’s prior written consent. Each party shall exercise the same degree of care to prevent disclosure of the Confidential Information as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care. Notwithstanding anything to the contrary herein, neither party to this Agreement bears responsibility for safeguarding information that is:
(a) publicly available;
(b) obtained from third parties not under confidentiality restrictions;
(c) was in the receiving party’s possession without restriction prior to disclosure by the disclosing party.
6.2 Permitted Disclosure. Notwithstanding the foregoing, Licensee may disclose the functionality and capabilities of the Licensed Product in so far as such relates to the Licensed Products, solely to potential investors in Licensee and customers of Licensee who are under a written confidentiality and non-disclosure agreement with terms at least as protective of the Licensed Product as the terms of Section 6.1 and are on a written list of potential investors or customers that has been provided to eTS in advance. If a receiving party is compelled by law, regulation or a court of competent jurisdiction to disclose any of the other party’s Confidential Information, the receiving Party shall promptly notify the disclosing party so that it may seek a protective order or other appropriate remedy. The receiving party agrees to cooperate at the disclosing party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the receiving party shall furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it shall receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under Section 6.1 above.
6.3 Remedy. If either party breaches or threatens to breach the provisions of Section 6.1 above, each party agrees that the non breaching party shall have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
6.4 Confidentiality of Agreement. Each party agrees that the financial terms and conditions of this Agreement, but not its existence, is confidential and neither party shall disclose the terms and conditions of this Agreement to any third party, other than to its financial and legal advisors, potential investors, or as otherwise permitted by Section 6.2.
7.1 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES IN SECTION 10 BELOW, THE LICENSEE PRODUCT IS PROVIDED ON AN “AS IS” BASIS. LICENSEE ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE LICENSEE PRODUCT TO ACHIEVE LICENSEE’S INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE LICENSEE PRODUCT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRNATIES IN SECTION 10 BELOW, ETS DISCLAIMS ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. ETS SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE LICENSEE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS. ETS DOES NOT WARRANT THAT THE LICENSEE PRODUCT WILL BE ERROR-FREE OR THAT THE ETS TECHNOLOGY WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
7.2 Exclusion of Consequential Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING NEGLIGENCE, CONTRACT, OR OTHERWISE, SHALL LICENSEE, ETS OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
7.3 The foregoing exclusions and limits shall not limit eTS’ indemnification obligations hereto.
8.1 Term. This Agreement shall commence on the Effective Date and is subject to Licensee’s compliance with its terms.
8.2 Termination for Breach. If either party defaults in the performance of any material provision of this Agreement (including the payment of fees), the non defaulting party may terminate this Agreement if the default is not cured within thirty (30) days of written notice thereof.
8.3 Termination for Insolvency. Either party may terminate this Agreement immediately upon notice if the other party:
(a) makes a general assignment for the benefit of creditors;
(b) is adjudicated bankrupt;
(c) files a voluntary petition for bankruptcy or reorganisation, or has a petition filed against it for an adjudication in bankruptcy or reorganization and such petition is not dismissed within sixty (60) days; or
(d) applies for or permits the appointment of a receiver, trustee or custodian for any of its property or assets.
8.4 Effect of Termination. Upon termination of this Agreement, the rights and obligations of the parties hereunder shall cease, except that:
(a) each party shall promptly return or destroy (and provide written certification of such destruction if requested) the Confidential Information of the other party; and
(b) Sections 1, 5.3, 6 (for 3 years), 7, 8.4, 9, 11, 12, and any payment obligations incurred prior to the date of termination, shall survive. eTS shall delete all Licensee Content from its systems and databases upon termination or expiration of this Agreement.
9.1 The Licensed Product and any technical data delivered under this Agreement are subject to UK export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledges that Licensee has the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to Licensee.
10.1 Joint Representations and Warranties. Each party represents and warrants to the other party that:
(i) it has full right, power and authority to enter into and perform its obligations under this Agreement without the consent of any third party; and
(ii) the individual executing this Agreement on its behalf is duly authorized to do so.
10.2 eTS Representations and Warranties. eTS represents, warrants, and covenants to Licensee that:
(i) it has the right to grant the license and other rights provided under this Agreement, and during the Term of this Agreement, it shall maintain all necessary to permit Licensee to exercise the licenses and other rights granted under this Agreement;
(ii) it is not and shall not become subject to any contract, duty or other obligation that conflicts with or is otherwise inconsistent with this Agreement;
(iii) it is solely responsible for the compensation of its personnel, agents, contractors and consultants, and payment of workers’ compensation, disability and other similar benefits, unemployment and other similar insurance, for withholding income and payroll taxes and for verifying the work eligibility of each such individual;
(iv) any documentation it provides meets reasonable standards of clarity, detail and accuracy so as to enable users to understand the access to and use of the Licensed Product;
(v) any services related to the Licensed Product will be performed in a diligent, timely, professional and workmanlike manner in accordance with prevailing industry standards and practices;
(vi) the Licensed Product will conform in all material respects with the applicable functional specifications;
(vii) the Licensed Product do not and will not contain any destructive elements; and
(viii) the Licensed Product will comply will all applicable laws, and eTS shall notify Licensee promptly of any revisions or modifications to the Licensed Product that could reasonably result in non-compliance with any applicable laws.
11.1 By eTS. Subject to Section 11.2, eTS shall
(i) defend any action, claim, suit, demand or proceeding brought by a third party (“Claim”) against Licensee, its officers, directors and employees arising directly out of an allegation that the Licensed Product infringes the Intellectual Property Rights of such third party, and
(ii) indemnify and hold harmless Indemnitee from all damages, costs, expenses and other amounts resulting from such Claim. eTS shall have no liability for any infringement Claims arising from:
(i) modification of the Licensed Product by a third party not under the direction or control of eTS;
(ii) combination or use of the Licensed Product with any other software, hardware or other products not contemplated hereunder;
(iii) any use of the Licensed Product other than as authorized under this Agreement.
THIS SECTION (11.1) STATES ETS’ ENTIRE OBLIGATION WITH RESPECT TO ANY THIRD-PARTY CLAIM REGARDING THE LICENSED PRODUCT.
11.2 Indemnification Procedure. In connection with any Claim, the party seeking indemnification (“Indemnitee”) shall:
(a) give the other party (“Indemnitor”) prompt written notice of the Claim (provided that any delay in notification shall not relieve Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend);
(b) cooperate reasonably with Indemnitor, at Indemnitor’s expense, in connection with the defence and/or settlement of the Claim; and
(c) permit the Indemnitor to control the defence and/or settlement of the Claim; provided that Indemnitor may not settle the Claim without Indemnitee’s prior written consent, not to be unreasonably withheld. Further, Indemnitee may, at its sole expense, participate in the defence and/or settlement of the Claim with counsel of its own choosing.
12.1 Establishment of Escrow. If mutually agreed in the SoW, eTS agrees to deposit and maintain, at the expense of Licensee, a copy of the source code for the Licensed Product (“Escrow Deposit”) in escrow with a mutually agreeable escrow agent (“Escrow Agent”).
12.2 Release Conditions. Licensee shall have right to obtain such Escrow Deposit upon the occurrence of any of the following conditions, (“Release Conditions”):
(a) the voluntary or involuntary institution by or against eTS of insolvency, receivership or bankruptcy proceedings, or any other proceedings for the general settlement of all or substantially all of its debts, which proceedings are not dismissed or otherwise resolved in its favour within ninety (90) days thereafter;
(b) eTS making a general assignment for the benefit of creditors; or
(c) eTS dissolution or ceasing to conduct business in the ordinary course.
12.3 License. Subject to the occurrence of a Release Condition, eTS hereby grants Licensee a limited, non-exclusive, non-transferable, non-sub-licensable license to use, copy, and modify the Escrow Deposit for the sole purpose of correcting errors, performing bug fixes, or performing maintenance of the Licensed Products except for conditions described in the SoW.
12.4 Security. Licensee shall use the Escrow Deposit only under carefully controlled conditions, shall treat the Escrow Deposit with the same security measures as Licensee treats its own most valuable trade secrets (but in no event less than a standard of care typical for the treatment of source code software) and shall inform all employees or permitted persons who are given access to the Escrow Deposit that the Escrow Deposit is a confidential trade secret of eTS. Licensee shall restrict access to the Escrow Deposit to those employees of Licensee who have agreed to be bound by a confidentiality obligation at least as protective of eTS rights as this Agreement, and who have a need to access the Escrow Deposit for the purposes allowed in this Agreement. Licensee shall take all necessary actions to recover any materials in the event of loss or misappropriation, or to otherwise prevent their unauthorized disclosure or use.
13.1 This warranty applies to all software built by eTS on behalf of the Licensee unless a specific sub-warranty exists under a separate project agreement. In this context, “warranty” refers to:
13.1.1 a set of obligations and duties that both eTS and the Licensee must adhere to in order to assure the smooth flow of software releases, issue identification and remediation of said issues
13.1.2 Issues/problems/bugs that are outside of the running of the servers (and relevant services), which are covered by the license fees
13.2 The basis of this warranty is as follows:
13.2.1 In the case of all projects, eTS are obligated to convene a Change Control Board (CCB) which will consist of stakeholders from both eTS and the Licensee. The CCB will be charged with ascertaining the categorisation of changes versus bugs within a software release and will work together to prioritise both changes and bugs in a realistic way.
13.2.2 eTS is obligated to test all software to a satisfactory level before releasing to the Licensee. Software test plans will be made available as part of the project delivery or as requested by the Licensee.
13.2.3 The Licensee are obligated to sign off all testing, to user acceptance test all software as per the project timelines and to report issues back to eTS in good time so that these issues can be remediated.
13.2.4 There may be cases where issues are logged but are agreed to be fixed at a set time following release – eTS and the Licensee will clearly track such issues and their statuses within an issue tracking log, an instrument which will be agreed upon on a per-project basis.
13.2.5 Following User Acceptance Testing and agreement of any release of software into the production environment, eTS will release the software to its respective production environment.
13.2.6 It is primarily eTS’ duty to ensure that post-release testing is carried out and that issues are logged and dealt with in a timely fashion.
13.2.7 It is also in the Licensee’s best interests to carry out post-release testing and to log all issues found within the eTS Service Desk system (see below).
13.2.8 Following post-release testing and clearing of all agreed issues, eTS and the Licensee will agree that the software is in full “Production/Live” mode and the warranty will commence.
13.2.9 The standard warranty will run for a period of 120 days from the date of “Production” mode being declared.
13.2.10 During this period all issues must be raised via the Service Desk System.
13.2.11 There will be two possible outcomes to a raised issue: - eTS will accept the issue and will agree to resolve the issue within a realistic and acceptable timeframe, all timeframes will be fully communicated to the licencee in good time. ETS will agree to prioritise said issues as “CRITICAL”, “HIGH”, “MEDIUM” or “LOW” - eTS will ask the CCB to review the issue and may ask for re-categorisation as a Change Request (CR). In many cases, small CRs will be handled free of charge, however in the case that a CR is deemed “large” or the number of CRs raised means that it would be unfair for the Licensee to expect eTS to execute these CRs in one batch, eTS will raise a quote for consideration by the CCB. Such quotes will be accepted or denied by the CCB, acceptance being the go-ahead to add the CR to the usual workflow. ETS will prioritise CRs as “CRITICAL”, “HIGH”, “MEDIUM” or “LOW”.
13.2.12 Issues will be dealt with according to agreed priorities.
13.2.13 In the rare case that both parties cannot agree to the categorisation of an issue, both parties will agree to seek mediation from a third party.
13.2.14 It will be ETS’ duty to manage the lifetime of warranties attached to projects, it is the Licensee’s duty to oversee this management, therefore all warranty tracking must be available to both parties at all times.
14.1 The basis of the standard eTS Service Desk is as follows unless detailed otherwise in the SoW:
14.1.1 eTS are obligated to maintain online systems that facilitate the execution of the warranty, namely an online Service Desk System.
14.1.2 eTS agree to monitor this Service Desk System between the hours of 0900-1700 Monday to Friday (UK business day).
14.1.3 eTS agree to respond to “tickets” raised within the Service Desk System within a maximum of 1 working day of tickets being raised and to provide further information and progress updates as is practical.
14.1.4 eTS agree to establish a 99.9% server (and relevant services) availability during Service Desk times
Licensee agrees to the following branding provisions unless specified on the SoW:
15.1 All Website properties shall have a “powered by eTravelSafety” line, in font no smaller than other font in the body of the page.
15.2 All Apple apps shall have a “powered by eTravelSafety” line at the opening page of the app.
15.3 All Android apps shall have a “powered by eTravelSafety” line at the opening page of the app.
15.4 If eTS wants the right to mention the Licensee’s name in press releases, blog articles, and on its Websites, it shall obtain the Licensee’s consent in advance in each such case.
16.1 Amendment. This Agreement may not be amended or modified except by the express written agreement of both parties.
16.2 Assignment. Licensee may not assign this Agreement, whether by operation of law or otherwise, without the prior written consent of eTS, which consent shall not be unreasonably withheld. Any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
16.3 Basis of Bargain. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are materially bargained for and that such warranty disclaimers and liability and remedy limitations have been considered and reflected in determining the consideration to be given by each party to enter into this Agreement.
16.4 Counterparts. This Agreement may be signed in counterparts, which together, shall constitute one original of this Agreement.
16.5 Governing Law. This Agreement shall be governed by England and Wales.
16.6 Headings. The headings contained herein are for the convenience of reference only, and are not intended to define, limit, expand or describe the scope or intent of any clause or provision of this Agreement.
16.7 Integration. This Agreement, including the SoW hereto, constitutes the entire agreement between Licensee and eTS relating to its subject matter, and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter.
16.8 No Third-Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Licensee and eTS (and their authorised assignees) any rights, remedies or other benefits under or by reason of this Agreement.
16.9 Notices. Any notice required or permitted by this Agreement shall be deemed given if delivered:
(i) in person;
(ii) by courier or other delivery service;
(iii) by facsimile, receipt confirmed;
(iv) by registered mail, postage prepaid, three (3) days after deposit with postal authorities, to the address first set forth above or at such other address for which such party gives notice hereunder.
16.10 Survivability. If any provision of this Agreement is held to be unenforceable, this Agreement shall remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement shall immediately terminate.
16.11 Waiver. The failure of either party to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of either party to enforce such provision thereafter. The express waiver by either party of any provision of this Agreement shall not constitute a waiver of the other party’s future obligation to comply with such provision.
16.12 Marketing. eTS shall cooperate in good faith with Licensee to consider Licensee’s requests for assistance to address Licensee’s business opportunity requirements that may require porting, adaptation, certification or accreditation of the Licensed Product to or on a specified platform or operating environment. Such requests may be subject, in the sole discretion of eTS, to reimbursement for eTS time and materials efforts, based on hourly fees outlined in the SoW, at commercially reasonable rates as mutually agreed between the Parties.