“Authorised Users”: those employees and independent contractors of Customer who are entitled to use the Software under this Licence, as further described in Clause 3.2.
“Anniversary date”: the date 12 months from the confirmation from the relevant delivery party of delivery of the FIDO Bugs.
“Business Day”: any day which is not a Saturday, Sunday or public holiday in the UK.
“Confidential Information”: information that is proprietary or confidential and which is either clearly labelled as such, identified as Confidential Information in Clause 10, or would otherwise be reasonably understood to be confidential by the party receiving it.
“Customer Data”: the data inputted into the Solution by Customer, by Authorised Users or by Vendor on Customer’s behalf, or otherwise provided to Vendor under this Licence, as further described in the Order Form.
“Data Protection Law”: for the periods in which they are in force and to the extent they apply to each of Vendor and Customer, the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018 and / or any other additional, supplementary or replacement legislation relating to data protection and / or privacy in the United Kingdom.
“Effective Date”: the date on which Customer first has access to the Solution.
“Fees”: the fees payable to Vendor by Customer, as described in the Order Form and this Licence.
“FIDO”: the FIDO SaaS solution, as further described at fidotech.co.uk from time to time.
“FIDO Sweep”: the solution formed of the FIDO Sweep application (as further described at fidotech.co.uk from time to time) plus relevant Hardware.
“Hardware”: any equipment or device made available by Vendor to Customer as part of the Solution, as described in the Order Form.
“Licence”: these licence terms and the Order Form, together which form a binding contract between Vendor and Customer.
“Onboarding Plan”: access to the FIDO knowledge base
“Order Form”: the order form on the FIDO Tech eshop website
“Services”: any set-up, training and / or other professional services to be provided by Vendor to Customer as described in the Order Form.
“Software”: Vendor’s proprietary software application(s) in machine-readable object code form which form part of the Solution, including as updated from time to time by Vendor.
“Solution”: means the FIDO, FIDO SWEEP and / or other Vendor solution(s), along with any Services, to be provided by Vendor to Customer as further described in the Order Form.
“Solution Specification”: the functional and non-function specifications for the Solution, as set out from time to time at [fido and / or in the Order Form.
“Virus”: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect, or adversely affect the user experience, of any computer or telecoms system, or any service or device including worms, trojan horses, viruses and other similar things or devices.
1.2 A reference to a ‘company’ shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.4 A reference to ‘writing’ or ‘written’ includes e-mail.
1.5 References to any statutes or statutory provisions include any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision.
1.6 If there is an inconsistency between the Order Form and these licence terms, the Order Form shall prevail.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- SET-UP SERVICES
2.1 Vendor provides access to an online knowledge base situated at www.fido.tech
2.2 Vendor shall perform any set-up Services in order to give access to FIDO AI
- SOLUTION LICENCE
3.1 In relation to Authorised Users:
(a) Customer shall maintain a written list of current Authorised Users of the Software, and Customer shall provide such list to Vendor as may be requested by Vendor from time to time; and
(b) Customer shall ensure that each Authorised User keeps a secure password for their use of the Software and that each Authorised User keeps their password confidential.
3.2 In relation to the Solution:
(a) Vendor hereby grants to Customer on and subject to the terms and conditions of this Licence a non-exclusive, non-transferable licence to allow Authorised Users to access the Software and Services and to use the Software and Services solely for Customer’s operational purposes during the term of this Licence;
(b) Customer shall not store, distribute or transmit any Virus or any unlawful or infringing material on or through the Solution;
(c) the rights provided under this Clause 3.2 are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of Customer;
(d) Customer shall not:
(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(iii) access all or any part of the Solution in order to build a product or service which competes with the Solution;
(iv) subject to Clause 15.7, transfer, temporarily or permanently, any of its rights under this Licence; or
(vi) otherwise attempt to obtain, or assist third parties in obtaining, access to the Solution; and
(e) Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Solution and notify Vendor promptly of any such unauthorised access or use.
(f) The Software and Services must only be used by and for the purposes of the End User as stated on the FIDO eshop website. Each Customer and/or End User uses the Licence in accordance with these Terms.
3.3 Any use of the Solution other than as permitted by, or other breach of, this Clause 3 shall constitute a “material breach” for the purposes of Clause 13.2(b).
- CUSTOMER DATA
4.1 In this Clause 4, the terms ‘personal data’, ‘process’, ‘controller’, ‘processor’ and ‘data subject’ shall have the meanings given to them from time to time under Data Protection Law.
4.2 Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.3 Customer shall ensure that relevant personal data is lawfully provided to Vendor (and shall provide all relevant data subjects with all information required under Data Protection Law in relation to such transfer and obtain all necessary consents) so that Vendor may lawfully process the personal data (as a processor) in accordance with this Licence.
4.4 Vendor may act as a controller in respect of Customer Data that it chooses to process (in accordance with Data Protection Law) for its own business reasons. To the extent (only) that Vendor acts as a processor in respect of personal data in the Customer Data, it shall:
(a) only provide such Customer Data to any sub-contractor for the purposes of processing by that sub-contractor with the prior written consent of Customer (such consent not to be unreasonably withheld, conditioned or delayed) and shall ensure that each sub-contractor is subject to contractual obligations as regards its processing of that Customer Data which are equivalent to those set out in this Clause 4.4;
(b) process such Customer Data only during the term of this Licence, for the purpose of providing the Solution to Customer and at all times in accordance with the written instructions of Customer (as set out in this Licence), except to the extent that it is required to process such Customer Data in any other way under applicable law (and in which case Vendor shall, to the extent permitted under the relevant applicable law, provide Customer with notice of that alternative processing). Vendor shall also inform Customer if, in Vendor’s opinion, any such instruction by Customer infringes any Data Protection Law;
(c) permit access to such Customer Data by its personnel or authorised third parties only if the person accessing such Customer Data is under appropriate confidentiality obligations and Vendor has taken reasonable steps to otherwise ensure the reliability of the relevant person;
(d) have in place now and shall on a continuing basis take appropriate technical and organisational measures to keep such Customer Data confidential and secure and to protect such Customer Data against accidental loss or unlawful destruction, alteration, disclosure or access;
(e) assist Customer (on reasonable request, at Customer’s cost), insofar as this is possible, with the fulfilment of Customer’s obligation to respond to requests for exercising data subject rights in relation to such Customer Data;
(f) taking into account the nature of the processing and the information available to Vendor, reasonably assist Customer (on reasonable request, at Customer’s cost) in ensuring compliance with any other obligations of Customer under Data Protection Law relating to such Customer Data;
(g) on termination of this Licence (and except as otherwise required under applicable law or to the extent retained as a controller for its own business purposes), as Customer elects, either delete or return to Customer all such Customer Data;
(h) on reasonable request and at Customer’s cost, make available to Customer copies of the information strictly required to enable Customer to assess Vendor’s compliance with this Clause 4.4. Further, on reasonable notice and during Vendor’s standard working hours (and only to the extent such audit is conducted without interruption to Vendor’s business operations), Customer or an auditor nominated by Customer (but not a competitor of Vendor) shall be entitled to audit Vendor’s premises and Customer-related computer systems once in each 12 month period under this Licence for the purpose of assessing Vendor’s compliance with this Clause 4.4; and
(i) only transfer such Customer Data outside the European Economic Area or the United Kingdom in compliance with Data Protection Legislation.
- VENDOR’S OBLIGATIONS
5.1 Vendor shall ensure that the Solution will perform substantially in accordance with the Solution Specification and that the Services will be performed with reasonable skill and care.
5.2 The obligation in Clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Solution or Services contrary to Vendor’s instructions or modification or alteration of the Solution by any party other than Vendor or Vendor’s authorised contractors or agents. If the Solution does not conform with Clause 5.1, Vendor will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of Clause 5.1. Notwithstanding the foregoing, Vendor does not warrant that Customer’s use of the Software and the Services will be uninterrupted or error-free.
5.3 This Licence shall not prevent Vendor from entering into similar agreements with third parties, or from independently developing, using, distributing, selling or licensing materials, products or services which are similar to those provided under this Licence.
- CUSTOMER’S OBLIGATIONS
6.1 Customer shall:
(a) provide Vendor with:
(i) all necessary co-operation in relation to this Licence; and
(ii) all necessary access to such information as may be required by Vendor in order to provide the Solution, including Customer Data, security access information and software interfaces to Customer’s other business applications;
(b) provide such personnel assistance as may be reasonably requested by Vendor from time to time;
(c) comply with all applicable laws and regulations with respect to its activities and its use or receipt of the Solution; and
(d) carry out all other Customer responsibilities set out in this Licence in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance, Vendor may adjust any timetable or delivery schedule envisaged by this Licence as reasonably necessary.
6.2 Customer hereby grants Vendor a royalty-free, transferrable licence to use any Customer Data as needed to provide the Solution to Customer and otherwise for Vendor’s business purposes, as envisaged by this Licence.
- CHARGES, PAYMENT AND AUDIT
7.1 Customer shall pay the Fees for use of the Solution.
7.2 All amounts and fees stated or referred to in this Licence are exclusive of value added tax, which shall be added to Vendor’s invoice(s) at the appropriate rate.
7.3 Vendor shall produce one invoice receipt at point of payment for each FIDO AI license package purchased on the eshop
(a) PROPRIETARY RIGHTS
8.1 Customer acknowledges and agrees that Vendor and/or its licensors own all current and future intellectual property rights in the Software and the Services. Except as expressly stated herein, this Licence does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
8.2 Vendor confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it grants under, and in accordance with, the terms of this Licence.
8.3 Vendor shall indemnify and hold harmless Customer against court-awarded damages arising from any third party claim that Customer’s use of the Software and / or Services as permitted by this Licence infringes that third party’s UK intellectual property rights, provided that:
(a) Vendor is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Vendor in the defence and settlement of such claim, at Customer’s expense; and
(c) Vendor is given sole authority to defend or settle the claim.
8.4 The above provisions of this Clause 8 shall survive termination of this Licence, however arising.
9.1 Vendor shall deliver any Hardware to Customer as described in the Order Form.
- Risk in the Hardware shall transfer to Customer on delivery of the Hardware to the Customer’s premises.
- Title in the Hardware shall remain with Vendor.
- Customer is entitled to possess the Hardware under the terms of the Contract.
- Customer must return the Hardware to Vendor upon completion or termination of the Contract. Hardware that is not returned will be subject to a charge as stated in clause 9.7.
- Hardware carries a 12-month return-to-base warranty. The warranty covers defects in material or manufacture only and is at the sole discretion of Vendor. Warranty commences at Effective Date and is not extended with replacement Hardware.
- Hardware that is out of warranty period, or is damaged, lost or otherwise made unusable through no cause of Vendor, may be replaced at a cost to the Customer of $75 + VAT where applicable per sensor.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Licence. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to Clause 10.4, each party shall hold the other’s Confidential Information in confidence and, unless required by applicable law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the performance of this Licence.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Licence.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by applicable law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 10.4, it takes into account (as far as reasonably practicable) the reasonable requests of the other party in relation to the content of such disclosure.
10.5 Customer acknowledges that the Solution and the results of any performance tests of the Solution constitute Vendor’s Confidential Information.
10.6 Neither party shall make, or permit any third party to make, any public announcement concerning the terms of Licence (but not, for the avoidance of doubt, the relationship between the parties) without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by applicable law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
10.7 The above provisions of this Clause 9.2 shall survive termination of this Licence, however arising.
11.1 Customer shall defend, indemnify and hold harmless Vendor against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with Customer’s use of the Solution other than as permitted by this Licence. Vendor shall ensure that:
(a) Customer is given prompt notice of any such claim;
(b) Vendor provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer’s expense; and
(c) Customer is given sole authority to defend or settle the claim.
11.2 The above provisions of this Clause 11 shall survive termination of this Licence, however arising.
- LIMITATION OF LIABILITY
12.1 This Clause 12 sets out the entire financial liability of Vendor (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer:
(a) arising under or in connection with this Licence;
(b) in respect of any use made by Customer of the Solution; and
(c) in respect of any representation, misrepresentation, statement or tortious act or omission (including negligence) arising under or in connection with this Licence.
12.2 Except as expressly and specifically provided in this Licence:
(a) Customer assumes sole responsibility for results obtained from the use of the Solution by Customer, and for conclusions drawn from or activities enabled by such use. Vendor shall have no liability for any damage caused by errors or omissions in any data, information, instructions or scripts provided to Vendor by or on behalf of Customer in connection with the Solution, or any actions taken by Vendor at Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Licence.
12.3 Nothing in this Licence excludes the liability of Vendor:
(a) for death or personal injury caused by Vendor’ negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to Clauses 12.2 and 12.3:
(a) Vendor shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Licence; and
(b) Vendor’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Licence shall be limited, on a per claim or per series of connected claims basis, to the Fees paid by Customer to Vendor during the 12 months preceding the date on which the claim (or first of a series of connected claims) arose.
- TERM AND TERMINATION
13.1 This Licence shall commence on the Effective Date and shall continue in full force and effect until terminated on the anniversary date as provided in this Clause 13.
13.2 Without affecting any other right or remedy available to it (but only to the extent permitted by applicable law), either party may terminate this Licence with immediate effect by giving written notice to the other party if:
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(f) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 13.2(c) to 13.2(e) (inclusive); or
(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.3 On termination of this Licence for any reason:
(a) all licences granted under this Licence shall immediately terminate;
(b) Vendor shall provide, or provide Customer the ability to bulk export [a copy of the Customer Data];
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination shall not be affected or prejudiced.
- FORCE MAJEURE
14.1 Neither party shall be in breach of this Licence nor liable for delay in performing, or failure to perform, any of its obligations under this Licence (except the obligation to pay) if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Vendor or any other party), failure of a utility service, third party data provider or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, epidemic or pandemic, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for four months, the party not affected may terminate this Licence by giving 30 days’ written notice to the other party.
15.1 A waiver of any right under this Licence is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under this Licence are cumulative and do not exclude rights provided by law.
15.3 If any provision (or part of a provision) of this Licence is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.4 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.5 This Licence constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.6 Each party acknowledges that in entering into this Licence it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence. Nothing in this clause shall limit or exclude any liability for fraud.
15.7 Customer shall not, without the prior written consent of Vendor, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Licence.
15.8 Vendor may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Licence.
15.9 Nothing in this Licence is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
15.10 No variation of this Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.11 This Licence does not confer any rights on any person or party (other than the parties to this Licence and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.12 Any notice required to be given under this Licence shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes.
15.13 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
- GOVERNING LAW AND JURISDICTION
16.1 This Licence and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales.
16.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Licence or its subject matter or formation (including non-contractual disputes or claims).