End User License Agreement for MidVision Cloud
MIDVISION CLOUD ON MICROSOFT AZURE MARKETPLACE
NOTICE TO USER (“BUYER”, “YOU” OR “LICENSEE”): THIS AGREEMENT GOVERNS USE BY LICENSEES OF THE MIDVISION SOFTWARE DESCRIBED HEREIN. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND TO THIS LICENSE, OR USING THE SOFTWARE, OR CLICKING TO PURCHASE A SUBSCRIPTION, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.
THIS agreement SHALL APPLY ONLY TO THE SOFTWARE or SUBSCRIPTIONS to which Licensee has obtained a valid license by clicking the SUBSCRIBE button or equivalent REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
YOU MAY HAVE ANOTHER WRITTEN AGREEMENT WITH MIDVISION THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
1.1. “MidVision” or “Licensor” means MidVision Limited, a company registered in England and Wales.
1.2. “Affiliate” means, with respect to a Party, any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with such Party.
1.3. “Azure Marketplace” means the software marketplace operated by Microsoft Azure, Inc. located at https://azure.microsoft.com/en-us/ as it may be updated from time to time.
1.4. “Microsoft” means Microsoft Inc., UK Headquarters: Microsoft Campus, Thames Valley Park Reading, Berkshire, RG6 1WG.
1.5. “Azure Machine Image” or “AMI” means virtual machine images containing software applications, libraries, data and associated configuration settings as made available on Azure and being a way that the Software offered under this Agreement may be provisioned to Buyer where the Software is delivered in a machine image using the Azure Machine Image functionality of Azure Services. Buyer deploys and runs the AMI containing the Software under Buyer’s own Azure Services account on Azure Services infrastructure.
1.6. “Azure” means the Microsoft Azure comprising a virtual computing environment including, without limitation, one (1) or more AMIs and the “Azure Cloud”, as defined at https://azure.microsoft.com/en-us/.
1.7. “Microsoft Azure Account” means the Licensee’s Azure account registered on Microsoft.com used to launch AMI instances, store and transfer data, run applications and receive billing.
1.8. “Authorized Users” means an employee, non-employee worker or other member of Buyer or any of its Affiliates’ workforces, Contractor of Buyer or any of its Affiliates or other person or software program or computer systems authorized by Buyer or any of its Affiliates to access and use the Software as permitted under this Agreement.
1.9. “Midvision-Cloud” or “Software” means MidVision Cloud software pre-installed as an AMI that can be run only on the Azure environment licensed on a Metered Pricing or Entitlement Pricing basis, and consisting of “Third Party Software” and “Value Add Components” and including any patches, bug fixes, corrections, remediation of security vulnerabilities, updates, upgrades, modifications, enhancements, derivative works, new releases and new versions of the Software that Licensor provides, or is obligated to provide, under this Agreement.
1.10. “Azure Services” means the cloud computing services offered by Microsoft Azure as they may be updated from time to time.
1.11. “Buyer Data” means all data, records, files, information or content, including text, sound, video, images and software, that is (a) input or uploaded by Buyer or its Users to or collected, received, transmitted, processed, or stored by Buyer or its Users using the Software in connection with this Agreement, or (b) derived from (a). Buyer Data is Confidential Information of Buyer.
1.12. “Buyer Materials” means any property, items or materials, including Buyer Data, furnished by Buyer to Licensor for Licensor’s use in the performance of its obligations under this Agreement.
1.13. “Contractor” means any third party contractor of Buyer or other third party performing services for Buyer, including outsourcing suppliers.
1.14. “Documentation” means the user guides, manuals, instructions, specifications, notes, documentation, printed updates, “read-me” files, Notices files, release notes and other materials related to the Software (including all information included or incorporated by reference in the applicable Azure Marketplace Listing), its use, operation or maintenance, together with all enhancements, modifications, derivative works, and amendments to those documents, that Licensor publishes or provides under this Agreement.
1.15. “Entitlement Pricing” means any pricing model for AMI Software Subscriptions where Buyer purchases a quantity of usage upfront, include prepaid and instalment payment pricing models.
1.16. “Licensed Materials” means the Software, Documentation and any other items, materials or deliverables that Licensor provides, or is obligated to provide, under this Agreement.
1.17. “Metered Pricing” means any pricing model for AMI Software Subscriptions where Buyer pays as it goes based on the quantity of its usage of the Software.
1.18. “Personnel” means a Party or its Affiliate’s directors, officers, employees, non-employee workers, agents, auditors, consultants, contractors, subcontractors and any other person performing services on behalf of such Party (but excludes the other Party and any of the foregoing of the other Party).
1.19. “Proprietary Rights” means all intellectual property and proprietary rights throughout the world, whether now known or hereinafter discovered or invented, including, without limitation, all: (a) patents and patent applications; (b) copyrights and mask work rights; (c) trade secrets; (d) trademarks; (e) rights in data and databases; and (f) analogous rights throughout the world.
1.20. “Services” means all services and tasks that Licensor provides, or is obligated to provide, under this Agreement, including without limitation Support Services.
1.21. “Sample Application Code” means the sample software code, application programming interface, header files and related information, and the file format specifications, if any, included as part of the Software as described in the Documentation or a “Read Me” file accompanying the applicable Software.
1.22. “Azure Marketplace Listing” means an offer by Licensor or a Reseller, as set forth in the detail page on the Azure Marketplace, to license Software for a specific use capacity and provide Support Services subject to this Agreement, including Licensor’s policies and procedures referenced or incorporated in the detail page.
1.23. “Subcontractor” means any third party subcontractor or other third party to whom Licensor delegates any of its duties and obligations under this Agreement.
1.24. “Subscription” means a subscription ordered by Buyer in the Azure Marketplace and fulfilled by Licensor for the licensing and provision of AMI Software listed in an Azure Marketplace Listing.
1.25. “Support Services” means the support and maintenance services for the Software that Licensor provides, or is obligated to provide, as described in the Azure Marketplace Listing.
1.26. “Value-Add Components” means the MidVision software (including MidVision RapidDeploy), patch management, remote access management, asset management, application integration, or other services that MidVision provides, which together with the Third Party Software, forms the Software.
2.1. Terms and Conditions. This Agreement for Azure Marketplace (the “Agreement”) sets forth the terms and conditions applicable to the licensing of Software from the licensor (“MidVision” or “Licensor”) by the Party subscribing to the Software (“Buyer” or “Licensee”) through the Azure Marketplace, deployed via AMI via an Azure Marketplace Listing. The offer of the Software as an Azure Marketplace Listing on the Azure Marketplace, and Buyer’s purchase of the corresponding Subscription on the Azure Marketplace, constitutes each Party’s respective acceptance of this Agreement and their entry into this Agreement (defined below). Unless defined elsewhere in this Agreement, terms in initial capital letters have the meanings set forth in Section 1 (Definitions). Buyer and Licensor may be referred to collectively as the “Parties” or individually as a “Party”.
2.2. Software Subscription. Buyer will subscribe to a Subscription as set forth in the Azure Marketplace Listing in accordance with this Agreement. Licensor will supply and sell the Subscription to Buyer, or Buyer may purchase the Subscription from Licensor’s authorized reseller (“Reseller”). A Subscription, as described in the applicable Azure Marketplace Listing, may be for Software deployed via AMI (“AMI Software”) or Software deployed via SaaS (“SaaS Software”). Software may be targeted for specific geographic regions, and Support Services may vary by geography as set forth in the applicable Azure Marketplace Listing. A Subscription may be provided on a Metered Pricing, Entitlement Pricing or other basis through the functionality available through Azure Services. The fee or rate for the Subscription is set forth in the applicable Azure Marketplace Listing. For Subscriptions provided on a Metered Pricing basis, upon request by Buyer, Licensor will provide sufficient documentation from its books and records to allow Buyer to verify the metered usage charged to Buyer for the Subscription.
2.3. Taxes. Each Party will be responsible, as required under applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. Applicable taxes and duties may be due in addition to the fees or rates payable by Buyer. Licensor may charge and Buyer will pay, where applicable, national, state or local sales or use taxes, or value added or goods and services tax, or withholding or other taxes (“Taxes”). Where required by local legislation, Microsoft Azure may charge for Taxes in its own name for Subscriptions made by Buyers on the Azure Marketplace, and Buyer will pay such Taxes. Buyer will receive a compliant tax invoice, where required. Upon request, Buyer will provide such information to Licensor as reasonably required to determine whether Licensor is obligated to collect Taxes from Buyer.
2.4. Agreement. Each Subscription is subject to and governed by this Agreement, the applicable Azure Marketplace Listing, the terms and conditions of the NDA (if any) and any amendments to any of the foregoing as may be agreed upon by the Parties, which together constitute the agreement between Buyer and Licensor (the “Agreement”). Each Subscription is a separate agreement between Buyer and Licensor. In the event of any conflict between the terms and conditions of the various components of this Agreement, the following order of precedence will apply: (a) any amendment agreed upon by the Parties; (b) the NDA (if any); (c) this Agreement; and (d) the Azure Marketplace Listing.
3.1. Licensed Materials
3.1.1. Licensor hereby grants to Buyer, subject to Section 3.1.2, a non exclusive, worldwide (subject to Section 3.5.6), non transferable (except in connection with an assignment permitted under Section 11.8 or a divestiture permitted under Section 11.9), non-terminable (except as provided in Section 13) license under all Proprietary Rights in and to the AMI Software and AMI Image, to deploy, operate and use the AMI Software and AMI Image under Buyer’s own Azure Services account on Azure Services infrastructure in accordance with the applicable Azure Marketplace Listing and for the purposes described in the Documentation and to allow its Authorized Users to access and use the AMI Software and AMI Image as so deployed.
3.1.2. Buyer may use the Software and, as applicable, the AMI Image only: in support of the internal operations of Buyer’s and its Affiliates’ business(es) or organization(s), in connection with Buyer’s and its Affiliates’ products and services (but, for clarity, not as a stand-alone product or service of Buyer or its Affiliates), and in connection with Buyer’s and its Affiliate’s interactions with Authorized Users.
3.1.3. Documentation. Buyer may make a reasonable number of copies of the Documentation as necessary for Authorized Users to use such Software, and as applicable the AMI Image, in accordance with the rights granted under this Agreement, provided that Buyer includes the original proprietary legends, copyright and other notices on all copies. Licensor retains all rights not expressly granted to Buyer under this Agreement.
3.1.4. Sample Application Code. Licensee’s Authorized Users may install, modify and use the Sample Application Code solely for purposes of facilitating use of validly licensed Software in accordance with this Agreement. Licensee may modify the Sample Application Code solely for the purposes of designing, developing and testing Licensee’s own software applications. However, Licensee is permitted to use, copy and redistribute its modified Sample Application Code only if all of the following conditions are met: (a) Licensee includes MidVision’s copyright notice (if any) with Licensee’s application, including every location in which any other copyright notice appears in such application; and (b) Licensee does not otherwise use MidVision’s or any of its suppliers name, logos or other MidVision or any of its suppliers trademarks to market Licensee’s application. Licensee agrees to defend, indemnify, and hold MidVision and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution of Licensee’s applications, provided that MidVision gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim.
3.2. Affiliates and Contractors. With respect to Affiliates and Contractors that Buyer allows to use the Licensed Materials: (a) Buyer remains responsible for all obligations hereunder arising in connection with such Affiliate’s or Contractor’s use of the Licensed Materials; and (b) Buyer agrees to be directly liable for any act or omission by such Affiliate or Contractor to the same degree as if the act or omission were performed by Buyer such that a breach by an Affiliate or a Contractor of the provisions of this Agreement will be deemed to be a breach by Buyer. The performance of any act or omission under this Agreement by an Affiliate or a Contractor for, by or through Buyer will be deemed the act or omission of Buyer.
3.3. Outsourcing. Licensee may sublicense use of the Software to an Authorized User to operate the Software on Licensee’s behalf, provided that: (a) Licensee provides MidVision with prior written notice; (b) Licensee is responsible for ensuring that any such Authorized User agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Licensee; (c) such use is only in relation to Licensee’s direct beneficial business purposes as restricted herein; (d) such use does not represent or constitute an increase in the scope or number of licenses provided hereunder; and (e) Licensee shall remain fully liable for any and all acts or omissions by the Authorized User related to this Agreement.
3.4. Delivery. The Software shall be made available solely via the AMI.
3.5.1. Limited Modifications, No Reverse Engineering. Licensee shall not modify, port, adapt or translate the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. For the avoidance of doubt, Licensee is permitted to use and modify the AMI (“Modified AMI”) in accordance with the Azure terms of service, and save the Modified AMI, including the Software only in the Licensee’s Microsoft Azure Account. However any Modified AMI may only be used and/or stored within Azure, as may be permitted under the Azure terms of service.
3.5.2. No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Licensee solely within Azure as permitted herein. Licensee is not required to use all component parts of the Software, but Licensee shall not unbundle the component parts of the Software. Licensee shall not unbundle or repackage the Software for distribution, transfer or other disposition.
3.5.3. No Transfer. Licensee shall not sublicense, assign or transfer the Software or Licensee’s rights in the Software, or authorize any portion of the Software to be copied onto or accessed from another individual or entity except as may be explicitly provided in this Agreement.
3.5.4. Prohibited Use. Except as expressly authorized through a separate custom hosting agreement, Licensee is prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; (c) providing use of the Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, time sharing basis, or as part of a hosted service; (d) using or downloading the Software on any other device or system, including but not limited to on-premises computing systems, other virtualized or cloud computing environments, or other Azure virtual machines; (e) working around any technical limitations in the Software; (f) duplicating the Software or publishing the Software for others to copy; or (g) using any component, library, or other technology included with the Software other than solely in connection with its use of the Software.
3.5.5. License Limit. Licensee shall only use the Software within their Microsoft Azure Account and only as allowed by the Licensee’s designated instance type. Where an instance type allows different vCPU combinations per instance, the fee listed shall assume the default number of vCPU’s per instance, which cannot be exceeded. Buyer agrees that the fee for the instance shall be for the default number of vCPU’s for that instance type irrespective of whether the actual number of vCPU’s specified by the Buyer when launching an instance is less than the default.
3.5.6. Export Rules. Licensee acknowledges that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that Licensee will comply with the Export Laws. Licensee will not ship, transfer, export, or re-export the Software, directly or indirectly, to: (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, Licensee is responsible for complying with any local laws in its jurisdiction which may impact Licensee’s right to import, export or use the Software. Licensee represents and warrants that (i) it is not a citizen of, or located within, an Embargoed Country, (ii) it will not use the Software for a Prohibited Use, and (iii) it is not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.
3.5.7. In the event that Licensee fails to comply with this Agreement, MidVision may terminate the license and Licensee must destroy all copies of the Software (with all other rights of both parties and all other provisions of this Agreement surviving any such termination).
3.5.8. The Software shall only be used together with the Value Add Components and Licensee shall make substantial use of the Value Add Components when using the Software.
3.6. Open Source Software. The Software may contain or be provided with components that are subject to the terms and conditions of “open source” software licenses (“Open Source Software”). If Buyer’s use of the Software subjects Buyer to the terms of any license governing the use of Open Source Software, then information concerning such Open Source Software and the applicable license must be incorporated or referenced in the Azure Marketplace Listing or Documentation. To the extent required by the license to which the Open Source Software is subject, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including without limitation, any provisions governing attribution, access to source code, modification and reverse-engineering.
3.7. High-Risk Activities. The Software is not designed or developed for use in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Software could lead to severe physical or environmental damages (“High Risk Activities”). Buyer will not use the Software for High Risk Activities.
4. Services & Support.
4.1. Licensor, its Affiliates or Third Party Suppliers will provide sufficient Documentation to allow a reasonably competent user to access and use the Software, and Licensor will provide Support Services to Buyer in accordance with the support plan set forth or incorporated into the Azure Marketplace Listing.
4.2. Licensee shall be entitled to ‘standard’ web based support from MidVision for the Software as described at https://www.midvisioncloud.com/support-services/support-slas/. For the avoidance of doubt, MidVision has no liability and provides no support for the hardware or any Azure services provided by Microsoft.
5. Intellectual Property Rights.
Subject to the licenses granted herein, Licensor its Affiliates or Third Party Suppliers will retain all right, title and interest it may have in and to the Licensed Materials, including all Proprietary Rights therein. Nothing in this Agreement will be construed or interpreted as granting to Buyer any rights of ownership or any other proprietary rights in or to the Licensed Materials.
The Software and any copies that Licensee is authorized by MidVision to make are the intellectual property of and are owned by MidVision and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of MidVision and its suppliers. The Software is protected by copyright, including without limitation by United Kingdom Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by MidVision.
All upgrades and updates are provided to Licensee at MidVision’s sole discretion and are subject to the terms of this Agreement on a license exchange basis. Licensee may maintain installations of previous versions of the Software on AWS provided that Licensee’s right to such simultaneous installations does not constitute an increase in the number of copies, licensed amounts or scope of use granted to Licensee hereunder. MidVision shall continue to provide Support Services for previous versions of the Software only whilst such Software remains within the published support schedule or lifecycle, excluding extended support options, updated from time to time by MidVision for the Value Add Components or by its suppliers for the Third Party Software. When upgrading or updating the Software, Licensee agrees to be bound by any additional or different License terms pertaining to any new versions of Third Party Software that form a constituent part of the upgraded or updated Software.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED BY MIDVISION, ITS AFFILIATES AND THIRD PARTY SUPPLIERS “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, MIDVISION MAKES NO WARRANTY THAT (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (III) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS; OR THAT (IV) ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MIDVISION OR THROUGH OR FROM USE OF THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
MIDVISION, ITS AFFILIATES AND THIRD PARTY SUPPLIERS SPECIFICALLY DISCLAIM ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. MIDVISION, ITS AFFILIATES AND THIRD PARTY SUPPLIERS ASSUME NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT YOUR USE OF THE SOFTWARE.
MIDVISION DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY MICROSOFT OR OTHER THIRD PARTIES ACCESSIBLE THROUGH MICROSOFT AZURE. MIDVISION MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT AZURE, AND SHALL NOT BE LIABLE FOR MICROSOFT OR OTHER THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
MIDVISION WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF USING AZURE OR A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE AND AS OTHERWISE PROVIDED IN SECTION 13, IN NO EVENT WILL MIDVISION OR ITS AFFILIATES OR SUPPLIERS BE LIABLE TO LICENSEE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF A MIDVISION REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION. MIDVISION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF EITHER FIVE HUNDERED UNITED STATES DOLLARS ($500) OR THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE. THIS LIMITATION WILL APPLY EVEN IF MIDVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 7 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
9.1. Confidential Information. “Confidential Information” means any non public information directly or indirectly disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or accessible to the Receiving Party pursuant to this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including without limitation technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, strategic roadmaps, product plans, product designs and architecture, security information, marketing plans, pricing and cost information, marketing and promotional activities, business plans, customer and supplier information, employee and User information, business and marketing plans, and business processes, and other technical, financial or business information, and any third party information that the Disclosing Party is required to maintain as confidential. Confidential Information will not, however, include any information which: (a) was publicly known or made generally available to the public prior to the time of disclosure; (b) becomes publicly known or made generally available after disclosure through no fault of the Receiving Party; (c) is in the possession of the Receiving Party, without restriction as to use or disclosure, at the time of disclosure by the Disclosing Party; (d) was lawfully received, without restriction as to use or disclosure, from a third party (who does not have an obligation of confidentiality or restriction on use itself); or (e) is developed by the Receiving Party independently from this Agreement and without use of or reference to the Disclosing Party’s Confidential Information or Proprietary Rights. Except for rights expressly granted in this Agreement, each Party reserves all rights in and to its Confidential Information. The Parties agree that the Licensed Materials are Confidential Information of Licensor.
9.2. Obligations. The Parties will maintain as confidential and will avoid disclosure and unauthorized use of Confidential Information of the other Party using reasonable precautions. Each Party will protect such Confidential Information with the same degree of care that a prudent person would exercise to protect its own confidential information of a like nature, and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof or access thereto. Each Party will restrict Confidential Information to individuals who need to know such Confidential Information and who are bound to confidentiality obligations at least as protective as the restrictions described in this Section 9. Except as necessary for the proper use of the Software, the exercise of a Party’s rights under this Agreement, performance of a Party’s obligations under this Agreement or as otherwise permitted under this Agreement, neither Party will use Confidential Information of the other Party for any purpose except in fulfilling its obligations or exercising its rights under this Agreement. Each Party will promptly notify the other Party if it becomes aware of any unauthorized use or disclosure of the other Party’s Confidential Information, and reasonably cooperate with the other Party in attempts to limit disclosure.
9.3. Compelled Disclosure. If and to the extent required by law, including regulatory requirements, discovery request, subpoena, court order or governmental action, the Receiving Party may disclose or produce Confidential Information but will give reasonable prior notice (and where prior notice is not permitted by applicable Law, notice will be given as soon as the Receiving Party is legally permitted) to the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or confidential treatment therefor or other appropriate remedy regarding such disclosure. Disclosure of any Confidential Information pursuant to any legal requirement will not be deemed to render it non-confidential, and the Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party will not be changed or lessened by virtue of any such disclosure.
9.4. NDA. Buyer and Licensor may agree that a separate nondisclosure agreement between Buyer and Licensor (or the respective Affiliates of Buyer and Licensor) (“NDA”) will apply to the Subscription, in which case the terms and conditions thereof are incorporated herein by reference and will apply instead of subsections 9.1 through 9.3 of this Section 9.
This Agreement, each Subscription entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in England and Wales. The respective courts of England shall have exclusive jurisdiction over all disputes relating to this Agreement. Notwithstanding any provision in this agreement, MidVision or Buyer may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. This Agreement will not be governed by the following, the application of which is hereby expressly excluded: (x) the conflict of law rules of any jurisdiction, (y) the United Nations Convention on Contracts for the International Sale of Goods, and (z) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
11.1. Severability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.
11.2. Updates and upgrades may be licensed to Licensee by MidVision with additional or different terms.
11.3. The English version of this Agreement shall be the version used when interpreting or construing this Agreement.
11.4. Entire Agreement. This is the entire agreement between MidVision and Licensee relating to the Software and it supersedes and extinguishes any prior representations, discussions, advertising, undertakings, communications or understandings between them whether written or oral relating to the Software.
11.5. MidVision may, from time-to-time modify this Agreement by posting a revised version on the Azure Marketplace, updating the EULA for the Azure Marketplace Listing or by otherwise notifying Licensee via email. Licensee’s continued use of the Software after any such modification constitutes Licensee’s acceptance of the revised Agreement.
11.6. Compliance with Laws. Each Party represents and warrants that it will comply with all applicable international, national, state and local laws, ordinances, rules, regulations and orders, as amended from time to time (“Laws”) applicable to such Party in its performance under this Agreement.
11.7. Power and Authority. Each Party represents and warrants that: (a) it has full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized; and (b) this Agreement and such Party’s performance hereunder will not breach any other agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party.
11.8. Assignment. This Agreement and any rights or obligations hereunder shall not be assigned or transferred in whole or in part by either Party without the prior written consent of the other Party. Any purported assignment or transfer will be null and void. Notwithstanding the foregoing, and without gaining the other Party’s written consent, either Party may assign this Agreement, in whole or part, and delegate its obligations to its Affiliates or to any entity acquiring all or substantially all of its assets related to the Azure Marketplace Listing or the assigning Party’s entire business, whether by sale of assets, sale of stock, merger or otherwise. This Agreement will inure to the benefit of the Parties hereto and their permitted successors and assigns.
11.9. Divestiture. If Buyer divests a portion of its business to one or more organizations that are not Affiliates of Buyer, or if an entity ceases to be an Affiliate of Buyer (such divested business unit or such entity, a “Divested Affiliate”), Licensor agrees to allow such Divested Affiliate to continue to use the Software, and Buyer may elect that (a) such Divested Affiliate continue, as if it were a Buyer Affiliate, to use the Software under Buyer’s Azure Marketplace account for the remainder of the Subscription, or (b) such Divested Affiliate may obtain its own Subscription to the Software for a period of 90 days after the effective date of such divestiture under the same terms and conditions as this Agreement and the same pricing as set forth in the Azure Marketplace Listing. Use by a Divested Affiliate after the conclusion of the Subscription or 90 day period, as applicable, will require a separately purchased subscription from Licensor through an Azure Marketplace account of that Divested Affiliate or its then-current Affiliates.
11.10. Force Majeure. Neither Party will 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 circumstances beyond the reasonable control of the Party affected. Each Party will promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than one month, either Party may terminate this contract by written notice to the other Party.
11.11. Headings. The headings throughout this Agreement are for reference purposes only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
11.12. Waiver. Any waiver or relaxation either partly, or wholly of any of the terms and conditions of this Agreement will be valid only if it is communicated to the other Party in writing and expressly stated to be a waiver. A waiver of any right or remedy arising from a breach of contract will not constitute a waiver of any right or remedy arising from any other breach of this contract.
11.13. Publicity. Neither Party will issue any publicity materials or press releases that refer to the other Party or its Affiliates, or use any trade name, trademark, service mark or logo of the other Party or its Affiliates in any advertising, promotions or otherwise, without the other Party’s prior written consent.
11.14. Relationship of Parties. The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between Buyer and Licensor, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Buyer and Licensor. Each Party assumes sole and full responsibility for its acts and the acts of its Personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.
11.15. Notices. To be effective, notice under this Agreement must be given in writing. Each Party consents to receiving electronic communications and notifications from the other Party in connection with this Agreement. Each Party agrees that it may receive notices from the other Party regarding this Agreement: (a) by email to the email address designated by such Party as a notice address for the Agreement; (b) by personal delivery; (c) by registered or certified mail, return receipt requested; or (d) by nationally recognized courier service. Any such Notice shall be deemed to have been received if delivered personally, at the time of delivery or in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting or in the case of fax, at the time of transmission or in the case of email, when sent unless an error message is received.
11.16. Subcontracting. Licensor may use Subcontractors in its performance under this Agreement, provided that: (a) Licensor remains responsible for all its duties and obligations hereunder and the use of any Subcontractor will not relieve or reduce any liability of Licensor or cause any loss of warranty under this Agreement; and (b) Licensor agrees to be directly liable for any act or omission by such Subcontractor to the same degree as if the act or omission were performed by Licensor such that a breach by a Subcontractor of the provisions of this Agreement will be deemed to be a breach by Licensor. The performance of any act or omission under this Agreement by a Subcontractor for, by or through Licensor will be deemed the act or omission of Licensor. Upon request, Licensor will identify to Buyer any Subcontractors performing under this Agreement, and such other information reasonably requested by Buyer about such subcontracting.
11.17. Cumulative Rights. The rights, powers, privileges and remedies provided in this Agreement are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law.
12. Notice to U.S. Government End Users.
12.1. Commercial Items. The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United Kingdom. MidVision.
12.2. U.S. Government Licensing of MidVision Technology. Licensee agrees that when licensing MidVision Software for acquisition by the U.S. Government, or any contractor therefore, Licensee will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227 7202 1 and 227 7202 4 (for the Department of Defense). For U.S. Government End Users, MidVision agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 C.F.R. Parts 60 1 through 60 60, 60 250, and 60 741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
13.1. Term. This Agreement will continue in full force and effect until conclusion of the Subscription, unless terminated earlier by either Party as provided by this Agreement.
13.2. Termination for Convenience. Buyer may terminate the Subscription or this Agreement without cause at any time upon notice to Licensor or using the termination or cancellation functionality available through the Azure Services. If a Subscription with Metered Pricing, Buyer will pay for all Software usage up to the time of termination. If a Subscription with Entitlement Pricing, Buyer will not be entitled to refund of fees nor relieved of any future payment obligations for any unused portion of the Subscription.
13.3. Termination for Cause. Either Party may terminate the Subscription or this Agreement if the other Party materially breaches this Agreement and does not cure the breach within 30 days following its receipt of written notice of the breach from the non-breaching Party.
13.4. MidVision reserves the right, in its sole discretion, to change, cease to provide or discontinue support for the Software at any time.
13.4.1. In the event that MidVision opts to discontinue support for the Software, MidVision shall provide Licensee with 90 days prior notice.
13.4.2. In the event that MidVision opts to cease to provide the Software pertaining to a Subscription, MidVision shall notify the Licensee, whereupon Licensee shall, within 90 days of receipt of such notice, discontinue its use of the Software and terminate its Subscriptions to the Azure Marketplace Listings containing the Software.
13.4.3. If the Licensee has an active Subscription using an Entitlement Pricing model, Licensor shall only cease to provide the Software where an exceptional circumstance results in Licensor’s inability to list the Software on the Microsoft Azure Marketplace. In this circumstance, Licensee shall be entitled to a refund of any prepaid but unused usage.
13.5. Effect of Termination.
13.5.1. Upon termination or expiration of the Subscription or this Agreement, Buyer’s right to use the Software licensed under such Subscription will terminate, and Buyer’s access to the Software and Services provided under such Subscription may be disabled and discontinued. Termination or expiration of any Subscription purchased by Buyer from Licensor will not terminate or modify any other Subscription purchased by Buyer from Licensor.
13.5.2. The following Sections shall survive termination of this Agreement: 1 (Definitions), 5 (Intellectual Property Rights), 7 (No Warranty), 8 (Limitation of Liability), 10 (Governing Law), 11 (General Provisions), 12 (Notice to U.S. Government End Users), and 13 (Term and Termination)..
14. Third-Party Beneficiary.
Licensee acknowledges and agrees that MidVision’s licensors (and/or MidVision if Licensee obtained the Software from any party other than MidVision) are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or MidVision.
15. Third-Party Software.
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required Third Party Software notices and/or additional terms and conditions are located at https://www.midvisioncloud.com/eula-third-party/ (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.
16.1. Coverages. Each Party will obtain and maintain appropriate insurance necessary for implementing and performing under this Agreement in accordance with applicable Law and in accordance with the requirements of this Section 16. Under Licensor’s right to self-insure, Licensor shall obtain and maintain at its own cost and expense the following insurances, with reputable UK insurers in respect of its obligations under this Agreement and for one year afterwards with a limit of indemnity in respect of any one occurrence or series of occurrences of not less than £1 million per year or more where required by law.
16.1.1. Professional Indemnity. Professional indemnity for information technology (also known as Errors and Omissions Insurance) of at least USD $2,000,000
16.1.2. Public & Product Liability. Public and Products Liability Insurance of at least USD $2,000,000
16.1.3. Employers Liability. Employers Liability Insurance of at least USD $2,000,000
16.2. Licensor shall on Licensee’s request, provide Licensee proof of such insurance policies.
17.1. Each Party shall, and shall procure that its Personnel shall:
(a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption including but not limited to the requirements of the UK Bribery Act 2010 and any other applicable statute, rule or regulation in force from time to time that amends, appeals or replaces such act (the “Bribery Act”);
(b) notify the other Party immediately it becomes aware of any breach or suspected breach of this clause 17.
(c) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act; and
(d) ensure that all persons associated with the Party or other persons who are performing services in connection with this Agreement comply with this clause 17.
17.2. Breach of this clause 17 shall be deemed a material breach of this Agreement. In such case, or in case a Party has serious reason to believe that the other Party has been in breach of its obligations hereunder, the Party shall be entitled to terminate the Agreement with immediate effect without being in default.
18.1. In this Section 18 the terms data processor, data subject, personal data and process shall have the meanings given to them in the UK Data Protection Act 2018 (the UK implementation of GDPR).
18.2. Each Party shall comply with the provisions of the UK Data Protection Act 2018 (and any other applicable statute, rule or regulation in force from time to time that amends, appeals or replaces such act) in relation to its use of any personal data concerning the other Party.
18.3. Where MidVision is processing personal data of the Licensee as a data processor:
a) MidVision shall only act on instructions regarding the processing of personal data under this Agreement;
b) MidVision shall ensure that appropriate technical and organisational measures shall be taken against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, having regard to the state of technological development and the cost of implementing the measures, so as to ensure a level of security appropriate to (i) the harm that may result from breach of such measures and (ii) the nature of personal data to be protected; and
c) MidVision shall comply with any reasonable request made from time to time by the Licensee to ensure compliance with the measures mentioned in this Section.
18.4. The Licensee hereby instructs the Licensor to carry out any processing of personal data reasonably necessary for the performance of this contract.
18.5. Each Party shall provide to the other Party full co-operation and assistance in allowing data subjects to access their rights under the Data Protection Act 2018 at no charge to the other Party.
19.1. If either Party becomes aware of any circumstances existing or arising between them or with third parties, which could create a conflict of interest in their collective delivery of the Software or Services to the Licensee during the term of this Agreement, the Party shall notify the other Party thereof without undue delay.
19.2. The Licensee may lodge a request with the Licensor to be notified of any change of control or ownership of the Licensor or its Affiliates during the term of this Agreement. If such a request has been lodged with Licensor, Licensor shall immediately notify Licensee of any change or potential change in ownership interests in or control of the Licensor or the Licensor’s owners that might arise during the course of this Agreement and that would cause a new owner to hold an ownership interest of more than 20%.
19.3. Licensor warrants, represents and undertakes that it is properly incorporated in the United Kingdom as a limited liability company (the “Company”) and will remain so during the term of this Agreement.
If Licensee has any questions regarding this Agreement or if Licensee wishes to request any information from MidVision please use the address and contact information included with this product to contact the MidVision office serving the Licensee’s jurisdiction.
MidVision and MidVision-Cloud are either registered trademarks or trademarks of MidVision Limited in the United Kingdom and/or other countries. All other trademarks are the property of their respective owners.