LITHO END USER LICENSE AGREEMENT
These terms and conditions (the "Agreement") constitute a binding agreement between you and Purple Tambourine Limited, a company incorporated in England whose place of business is 12 Kingsley Place, London, N6 5EA and trading as LITHO (“LITHO”). If you are entering into this agreement on behalf of an entity, you represent that you have the right, authority and capacity to bind such entity to this Agreement. In any event, references herein to “Trusted Tester” mean you or such entity (as the case may be). LITHO and Trusted Tester are each a “party” and, together, the “parties”.
By installing or using any part of the LITHO BETA Hardware or LITHO SDK (as defined below), Trusted Tester acknowledges these terms and conditions and represents that it has fully read and understood, and agrees to be bound by, the following (the date of such occurrence being the “Effective Date”): this Agreement and other supplemental terms and policies that this Agreement expressly incorporates by reference, and which are thereby made a part of this Agreement.
If Trusted Tester does not agree with any of the terms or conditions of this Agreement, Trusted Tester must not access or use any part of the LITHO BETA Hardware or LITHO SDK.
In exchange for a fee, LITHO shall provide Trusted Tester with access to the LITHO BETA Hardware . LITHO shall also provide Trusted Tester with access, and a non-exclusive licence to use, the LITHO SDK. The LITHO BETA Hardware and the LITHO SDK together are the “Product”. This Agreement entitles Trusted Tester to use the Product for Trusted Tester’s internal organisational use only and not for any commercial purpose. If Trusted Tester wishes to use the product for a commercial purpose or to develop an app for distribution, Trusted Tester must pay an additional licence fee and sign further documentation; please email our sales team at firstname.lastname@example.org for details.
“Intellectual Property Rights” means all copyright and rights in the nature of copyright, database rights, design rights, patents and trade marks (including all goodwill in them), applications for any of the above, moral rights, know-how, confidential information, and/or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world.
“LITHO BETA Hardware” means the beta product developed by LITHO which includes the physical hardware and the proprietary firmware.
“LITHO SDK” means the LITHO Software Development Kit which consists of (i) the LITHO Plugin including the bluetooth connection layer and tracking layer and (ii) the LITHO Examples which are open source and include example scripts.
3. FEES & PAYMENT
In exchange for a fee agreed upon by both LITHO and Trusted Tester (the “Fee”), LITHO shall provide Trusted Tester with access to the LITHO BETA Hardware. Subject to the terms and conditions of this Agreement, LITHO also grants Trusted Tester a limited non-exclusive licence to install and use one copy of the LITHO SDK on a single computer for use only with a LITHO BETA controller. If the Software is used for a non-household or non-educational purpose, the licence granted under this clause 3 does not extend to use by multiple users (for example, but not limited to, use in a kiosk, shared workstation, sales register, retail or commercial display) unless there is a separate agreement between Trusted Tester and LITHO specifically permitting such use by multiple users.
This Agreement shall be effective from the Effective Date and (unless terminated as allowed under this Agreement or by law) ends upon the Product coming out of its beta phase (such date being decided at LITHO’s absolute discretion) and the parties signing a further agreement regulating use of the non-beta Product.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 LITHO owns the LITHO SDK and all Intellectual Property Rights in the Product.
5.2 LITHO grants Trusted Tester a non-exclusive, non-transferable licence for the duration of this Agreement to access and use the LITHO SDK.
5.3 Trusted Tester may provide LITHO with certain documents, comments, suggestions and feedback relating to its use of the Product (collectively “Information”). LITHO shall own such Information (including any Intellectual Property Rights in it) and be entitled to use it in current or future products or services without any compensation to Trusted Tester. To the extent necessary, Trusted Tester agrees to assist LITHO in securing ownership of such Information, including executing any documents as appropriate. To the extent applicable law limits or prohibits such assignment of rights to Information, Trusted Tester grants LITHO a perpetual, fully paid-up, non-exclusive licence to use the Information.
5.4 Except to the extent expressly stated otherwise in this Agreement, neither party shall acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party or the other party’s licensors.
6. CONFIDENTIAL INFORMATION
During the course of the Agreement, one party (the “discloser”) may disclose Confidential Information to the other party (the “recipient”). “Confidential Information” means information that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that: (a) the recipient already knew; (b) becomes public through no fault of the recipient; (c) the recipient independently developed; or (d) that was lawfully given to the recipient by a third party. It includes (without limitation): (i) trade secrets; (ii) product prototypes, methodologies and other technical and design information; and (iii) business information including plans, customers and products. Neither party shall disclose Confidential Information to any third party unless authorised in writing by the discloser. On termination or expiry of this Agreement, each party shall promptly return all Confidential Information belonging to the other, or certify in writing that all such Confidential Information has been destroyed.
Trusted Tester shall not, and shall not attempt to, copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, translate, or attempt to discover any prototypes, software, algorithms, or underlying ideas which embody the Product (except to the extent allowed by law). Trusted Tester shall not rent, lease, sub-license, loan, distribute, translate, merge, adapt, vary or modify the Product. Trusted Tester shall not use the LITHO BETA Hardware with any interfacing software except the LITHO SDK. Trusted Tester shall not build a product using similar ideas, features, functions or graphics as the LITHO BETA Hardware or LITHO SDK or copy any ideas, features, functions or graphics which are proprietary to LITHO. Trusted Tester shall not use the Product in a way that could damage, disable, overburden, impair or compromise LITHO’s systems or security or interfere with other users. Trusted Tester may use the Product to develop and test applications, but if Trusted Tester wants to use the Product for commercial purposes or wants to use the Product to develop an app for distribution, Trusted Tester must pay a fee and sign further documentation available on request from email@example.com.
LITHO shall be entitled to use Trusted Tester’s name and logo on its sales, marketing and PR material (including its website) for the duration of this Agreement and Trusted Tester grants LITHO a non-exclusive licence solely for this purpose.
9. TERMINATION RIGHTS
9.1 Either party may, on giving written notice to the other, terminate this Agreement with immediate effect if: (i) the other party is in material breach of the Agreement and such breach is incapable of remedy; (ii) the other party is in breach of the Agreement and, where such breach is capable of remedy, fails to remedy such breach within 30 days of being so requested in writing; (iii) regardless of whether the breach could be regarded as material or is capable of remedy, the other party is in breach of clause 6 or 7; or (iv) any force majeure event continues for a period of 30 consecutive days or more.
9.2 Either party shall be entitled, on giving written notice to the other, to terminate this Agreement with immediate effect if the other party ceases, or threatens to cease to carry on business, or is or becomes unable to pay its debts as they fall due.
9.3 Without affecting any other right or remedy available to it, either party may terminate this agreement on giving not less than 30 days’ written notice to the other party.
9.4 On termination of this Agreement the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
10. NATURE OF BETA PRODUCT
The Product is currently a beta version which has not been fully tested. Trusted Tester understands that the Product is still subject to modifications and improvements. The Product is made available for use “as is” and LITHO does not give or enter into any conditions, warranties or other terms with regard to the Product. No condition, warranty or other term is given or entered into to the effect that the Product shall be of satisfactory (or any other) quality or that the Product shall be fit for any particular purpose. To the fullest extent permitted by applicable law, no other warranties, conditions or terms shall apply and all warranties, conditions or terms implied by law or by custom are excluded.
11.1 LITHO does not warrant that the use of the Product will be uninterrupted or error-free. Trusted Tester accepts responsibility for the selection of the Product to achieve its intended results and acknowledges that the Product has not been developed to meet the individual requirements of Trusted Tester. Trusted Tester acknowledges that any open-source software provided by LITHO is provided “as is” and is expressly subject to the disclaimer in clause 11.2. LITHO Hardware has not been tested and should therefore not be used in safety-critical or high-reliance situations.
11.2 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill or care.
12. LIMITS OF LIABILITY
12.1 Except as expressly stated in clause 12.2:
12.1.1 LITHO shall not in any circumstances have any liability for any losses or damages which may be suffered by Trusted Tester (or any person claiming under or through Trusted Tester), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise, which fall within any of the following categories:
18.104.22.168 special damage, even if LITHO was aware of the circumstances in which such special damage could arise;
22.214.171.124 loss of profits;
126.96.36.199 loss of anticipated savings;
188.8.131.52 loss of business opportunity;
184.108.40.206 loss of goodwill;
220.127.116.11 loss or corruption of data
provided that this Clause 12.1.1 shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of Clause 11.1 or any other claims for direct financial loss that are not excluded by any of categories 18.104.22.168 to 22.214.171.124 inclusive of this Clause 12.1.1;
12.2 the total liability of LITHO, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
12.3 Trusted Tester agrees that in entering into this Agreement, either (i) it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (ii) if it did rely on any representations, whether written or oral, not expressly set out in this Agreement that it shall have no remedy in respect of such representations.In either case, LITHO shall have no liability in any circumstances otherwise than in accordance with the express terms of this Agreement.
12.4 The exclusions in clause 11.2 and clause 12.1 shall apply to the fullest extent permissible by applicable law, but LITHO does not exclude liability for:
12.4.1 death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
12.4.2 fraud or fraudulent misrepresentation;
12.4.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or any other liability which may not be excluded by law.
13.1 This Agreement does not create any agency or partnership relationship between LITHO and Trusted Tester.
13.2 Neither party can assign or transfer this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld or denied) except that either party shall be entitled to assign or transfer this Agreement to a purchaser of all or a substantial part of its assets without such consent.
13.3 This Agreement sets out all the terms between LITHO and Trusted Tester with respect to its subject matter and supersedes any prior oral or written agreements.
13.4 Nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.
13.5 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
13.6 Trusted Tester shall not without the prior written consent of LITHO, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. LITHO 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 Agreement.
13.7 Any notice required to be given under this Agreement 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 this agreement or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Agreement. 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. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
13.8 This Agreement shall be governed by and construed in accordance with English law. The parties agree that any dispute or claim arising out of or in connection with this Agreement shall be brought exclusively in the courts of England and Wales.
13.9 This Agreement has been entered into on the date stated at the beginning of it.