END USER LICENSE AGREEMENT (“EULA”)
BY COMPLETING THE SUBSCRIPTION PROCESS OR USING ALL OR ANY PORTION OF BEYOND ANALYSIS LIMTED’S IRIS PRODUCT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON BEYOND ANALYSIS’ WEBSITE AT WWW.BEYONDANALYSIS.NET (AS MAY BE RELOCATED BY BEYOND ANALYSIS FROM TIME TO TIME). YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND BEYOND ANALYSIS LIMITED OR THE APPLICABLE BEYOND ANALYSIS AFFILIATE (“BEYOND ANALYSIS”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE IRIS. IF YOU WISH TO USE IRIS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO. IN THE EVENT YOU ARE REDIRECTED TO BEYOND ANALYSIS’S WEBSITE, YOU AGREE THAT YOUR USE IS SUBJECT TO ANY TERMS OF SERVICE OR PRIVACY POLICIES POSTED THEREON.
Last Updated on 5th May 2020
This End User License Agreement (“Agreement”) is between Beyond Analysis and the customer (individual or entity) that has accessed Beyond Analysis’ IRIS product (as defined below) for use as an end user (“you”).
1. Definitions. Affiliate: means each legal entity that is directly or indirectly controlled by you on or after the Effective Date and for so long as such entity remains directly or indirectly controlled by you (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership). Authorized User: means those unique individual for whom the applicable license has been allocated and for which the fees have been paid. Documentation: means any supporting product help and technical specifications documentation provided by Beyond Analysis in relation to IRIS. Effective Date: means the date of your completion of the Subscription Process or the initial Delivery date of access to IRIS (whichever is later). License Term: means the IRIS license term as controlled by the Subscription. Product: means IRIS, the proprietary Beyond Analysis software product provided in connection with this Agreement in object code form. “Product” shall also include any Support and Maintenance Services releases provided to you under this Agreement. Unless otherwise noted, the Product and Documentation are referred to collectively herein as “Product”.
2. IRIS. Industry Recovery Index is a hosted service permitting Customer to access Beyond Analysis’ proprietary market insight tool. IRIS is provided on a monthly subscription basis (“Subscription Term”) as set out on the Register Page.
3.1 Grant of License. Subject to all of the terms and conditions of this Agreement, and except as set forth in Section 6 (Term and Termination), during the applicable License Term, Beyond Analysis grants you a limited, worldwide, non-transferable, non-sublicensable, non-exclusive license to use the IRIS product for which you have been issued a set of login credentials by Beyond Analysis or an Authorized Partner, but only in accordance with: (a) the Documentation; and (b) the restrictions in Section 2 (Beyond Analysis Products), Section 3.3 (License Restrictions) and any restrictions on the applicable Registration page.
3.2 Third-Party Code. IRIS may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon your written request. To the extent required by the license that accompanies the Open Source Software, 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 access to source code, modification or reverse engineering.
3.3. License Restrictions. As a condition of your license, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the product or Third Party Code or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Product or Third Party Code by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use the Product, Third Party Code or Sample Code (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Product, Third Party Code or Sample Code; (d) modify any part of the Product, Third Party Code or Sample Code, create a derivative work of any part of the Product, Third Party Code, or Sample Code, or incorporate the Product, Third Party Code or Sample Code into or with other software, except to the extent expressly authorized in writing by Beyond Analysis or as permitted by an applicable Open Source Software license; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Product; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Product Key or copy protection used by Beyond Analysis in connection with the Product, or use the Product together with any authorization code, Product Key, serial number, or other copy protection device not supplied by Beyond Analysis or through an Authorized Partner; (g) use the Product to develop a product which is competitive with any Beyond Analysis product offerings; (h) allow multiple users to use the same login credentials; or (i) assert, nor will you authorize, assist or encourage any third-party to assert, against Beyond Analysis or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Product or Support and Maintenance or Professional Services you have purchased or used hereunder.
4. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Beyond Analysis and its licensors have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Product, Sample Code, Third Party Code, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Product, Sample Code, Third Party Code and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
5. Payment. You shall pay all fees associated with the IRIS licensed and any services purchased hereunder as set forth on the IRIS website. All payments shall be made in the currency noted on the applicable page of the IRIS website. Except as expressly set forth herein, all fees are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, Beyond Analysis will charge you for all applicable taxes including VAT.
6. Term and Termination.
6.1 Term of License. Unless sooner terminated as provided herein, your license to Software expires at the end of the applicable License Term. License Terms will be renewed automatically if not terminated.
6.2 Term of Agreement. This Agreement commences on the Effective Date and expires at such time as all License Terms and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). Either party may terminate this Agreement (including all related Ordering Documents) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach including without limitation your failure to pay, provided that Beyond Analysis may terminate this Agreement and the IRIS license(s) (including termination of the IRIS license(s) if this Agreement has already expired or has been terminated) immediately upon any breach of Section 3.3 (License Restrictions)); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Unless otherwise specified herein, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.3 Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of IRIS.
6.4 Survival. Sections 3.3 (License Restrictions), 4 (Ownership), 5 (Payment), 6 (Term and Termination), 7 (Disclaimer of Warranties), 10 (Limitation of Liabilities), 9 (Intellectual Property) and 10 (General) shall survive any termination or expiration of this Agreement.
7. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE IRIS PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON IRIS AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. BEYOND ANALYSIS AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING IRIS AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGMENT. FURTHERMORE, BEYOND ANALYSISAND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) IRIS OR THIRD PARTY CONTENT WILL MEET YOUR REQUIREMENTS; (II) IRIS OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH IRIS WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN IRIS OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED.
8. Limitation of Liabilities. THIS SECTION SETS OUT THE ENTIRE FINANCIAL LIABILITY OF BEYOND ANALYSIS (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS, CONSULTANTS, SUBCONTRACTORS, PARTNERS, VENDORS AND LICENSORS) TO YOU IN RESPECT OF: (A) ANY BREACH OF THE EULA; (B) ANY USE MADE BY YOU OF IRIS; AND (C) ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THE EULA, SAVE AS SET OUT UNDER THE HEADING "EXCLUSIONS OF LIMITATION" BELOW.
EXCLUSIONS OF LIMITATION NOTHING IN THIS EULA SHALL EXCLUDE BEYOND ANALYSIS' LIABILITY: (A) FOR DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY'S NEGLIGENCE; (B) ANY FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) TO THE EXTENT SUCH LIMITATION OR EXCLUSION IS NOT PERMITTED BY APPLICABLE LAW.
CHANGES TO TERMS EXCEPT AS EXPRESSLY STATED IN THIS EULA BEYOND ANALYSIS EXCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER TERMS, CONDITIONS, OBLIGATIONS, WARRANTIES AND REPRESENTATIONS (WHETHER EXPRESS OF IMPLIED) IN RESPECT OF THIS EULA. YOU HEREBY AGREE THAT THE TERMS OF THIS EULA SHALL NOT BE ALTERED DUE TO CUSTOM OR USAGE OR DUE TO THE PARTIES’ COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER THIS EULA.
EXCLUSIONS OF LIABILITY SUBJECT TO THE SECTION HEADED "EXCLUSIONS OF LIMITATION" ABOVE, IN NO EVENT SHALL BEYOND ANALYSIS BE LIABLE FOR: A) LOSS OF PROFITS; OR B) LOSS OF BUSINESS; OR C) LOSS OF BUSINESS OPPORTUNITY; OR D) DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES; OR E) LOSS OF ANTICIPATED SAVINGS; OR F) LOSS OF OR CORRUPTION OF DATA OR INFORMATION; OR G) ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCEDENTAL, PUNATIVE OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ("LOSSES"), WHETHER BASED ON BREACH OF CONTRACT, FUNDAMENTAL BREACH, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES AND EVEN IF SUCH LOSSES WERE FORESEEABLE AT THE DATE OF THIS EULA.
CAP ON LIABILITY BEYOND ANALYSIS’ TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN ANY TWELVE MONTH PERIOD IN CONNECTION WITH THE PERFORMANCE, OR CONTEMPLATED PERFORMANCE, OF THIS EULA SHALL BE LIMITED TO FIVE HUNDRED POUNDS.
9. Intellectual Property. Title to, ad all Intellectual Property Rights within IRIS, the source code, the website and any documentation relating to IRIS remain the property of Beyond Analysis.
10.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Beyond Analysis may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Beyond Analysis’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Beyond Analysis’ written consent except that you may assign your rights and obligations under this Agreement, in whole but not in part, without Beyond Analysis’s written consent in connection with any merger, consolidation, sale of all or substantially all of your assets, or any other similar transaction provided that: (a) the assignee is not a direct competitor of Beyond Analysis; (b) you provide prompt written notice of such assignment to Beyond Analysis; (c) the assignee is capable of fully performing your obligations under this Agreement; and (d) the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
10.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.3 Governing Law; This agreement 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 law of England.
10.4 Legal Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its legal fees and costs in connection with such action.
10.5 Notices and Reports. Any notice or report hereunder shall be in writing. If to Beyond Analysis, such notice or report shall be sent to Beyond Analysis at Woodcock House, Gibbard Mews, Wimbledon SW19 5BY. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.
10.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form, including any electronic invoicing portals and vendor registration processes, employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
10.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by Beyond Analysis for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
10.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.9 Audit Rights. Upon Beyond Analysis’s written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement (including any Core and user limitations) and provide a current list of Authorized Users for Desktop and User-Based Server licenses. With reasonable prior notice, Beyond Analysis may audit your use of IRIS, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to the Software in a manner that is not permitted under this Agreement, then Beyond Analysis may terminate this Agreement pursuant to Section 6 and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Beyond Analysis may be entitled to under this Agreement and applicable law.
10.10 Force Majeure. Neither party shall be liable to the other under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Beyond Analysis or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
10.11 Authorized Partner. If you received access to IRIS under an agreement (“Partner Agreement”) with an authorized Beyond Analysis reseller or partner (“Authorized Partner”) then, notwithstanding anything to the contrary in this Agreement: (a) your use of IRIS is subject to any additional terms in the Partner Agreement, including any limitations on use of the IRIS in conjunction with third-party applications; and (b) you agree to pay the Authorized Partner the fees agreed in the Partner Agreement and you have no direct payment obligations to Beyond Analysis for that purchase under Section 5 above. If your warranty and support terms stated in your Partner Agreement are different than what is stated in Section 7 herein, then Beyond Analysis has no warranty or support obligations to you under this Agreement (although the disclaimers of warranties in Section 7 still apply to you). If your warranty and support terms passed on in your Partner Agreement are as stated herein, then Section 7 shall apply to you as written. Notwithstanding anything in this Agreement to the contrary, (i) the Partner Agreement may not modify any of the remaining terms of this Agreement and (ii) the Partner Agreement is between you and the Authorized Partner and is not binding on Beyond Analysis. Beyond Analysis may terminate this Agreement (including your right to use the IRIS) in the event Beyond Analysis fails to receive payment for your use of the Software from the Authorized Partner or if you breach any term of this Agreement.
10.12 Third-Party Beneficiary. Beyond Analysis Limited, its affiliates and its licensors may be third party beneficiaries of this Agreement.