Face(TM) by Holition logo
“FACE™️ BY HOLITION” - SOFTWARE LICENCE
OUR LICENCE FOR “FACE BY HOLITION”:
1. Holition will licence the Software to You for payment of the Licence Fee.
2. This Licence is non-exclusive basis for use described in the SOW and subject to the terms of this Licence.
3. The amount of the Licence Fees and the Term of this Licence are as shown in the SOW
4. Holition is entitled to charge You daily interest on late payments and Holition may withdraw Your access to the Software. Interest will be charged at 4% per annum above Bank of England base rate from time to time and will be added to the overdue amount.
5. If You renew this Licence, the Licence Fees and will be quoted to You by Holition in advance of renewal.
6. Holition is permitted to make announcements on any public media concerning use of the Software by You.
7. During the Term and for 3 years after Holition will keep secret all Confidential Information about Your business that You shared with Holition.
8. All Intellectual Property Rights in the names “Holition”, “Face”, “Face by Holition”, and in the Software, maintenance releases and updates belong to Holition.
9. Holition can sub-license, assign, novate, charge or deal with any or all of its rights and obligations under this Licence in any other manner, on written notice to You.
10. Holition warrants that the Software will conform in all material respects to the description of it in the SOW and will operate in the supported environments in the SOW, during the Warranty Period.
11. During the Warranty Period, You may notify Holition in writing of any defect or fault if the Software fails to conform in all material respects to the description in the SOW and, at its option, Holition shall either (i) repair the Software; (ii) replace the Software; or (iii) terminate this Licence by notice in writing to You and refund any of the Licence Fee paid by You at the date of termination (less a reasonable sum in respect of Your use of the Software to the date of termination).
12. The warranties in clauses 10 and 11 only apply if You provide all the information necessary to assist Holition in resolving the defect or fault, including documented examples and sufficient information to enable Holition to re-create the defect or fault in a testing environment.
13. The warranties in clauses 10 and 11 do not apply where the defect or fault results from You, or anyone else (i) amending the Software, (ii) using it outside this Licence or specific description in the SOW (iii) using it in combination with any other software not provided by Holition, and/or (iv) if it has not been loaded onto Holition-specified or suitably configured equipment or use in operating environment specified in the SOW.
14. Holition does not warrant that the use of the Software will be uninterrupted or error-free. No warranty is given by Holition in respect of any open-source software used.
15. 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 and care.
17. If any Claim is made, Holition may take such steps as it deems reasonable to procure for You the right to continue to use the Software, modify or replace it or terminate this Licence immediately by notice in writing to You, which case Holition will refund any of the Licence Fees paid by You for the remaining Term less a reasonable sum in respect of Your use of the Software to the date of termination.
18. Holition’s obligations under clause 10 are conditional on You giving written notice of the Claim to Holition as soon as reasonably practicable after receiving it and (i) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Holition; and (ii) giving Holition and its professional advisers access to Your premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control to enable Holition and its professional advisers to assess the Claim.
19. The undertaking and indemnity in 10 is your exclusive remedy and Holition's only liability in respect of Claims and is subject to a maximum payment by Holition in respect of legal and other professional fees and/or costs or settlement sums combined, of 75% of the Licence Fee paid in the year in which the Claim is made.
20. Holition shall have no liability to You other than the expressly stated in this Licence. Holition shall have no liability for any losses or damages suffered by You (or any person claiming under or through You), directly or indirectly, immediate or consequential, arising in contract, tort (including negligence) or otherwise, which fall within any of the following categories; special damage (even if Holition was aware of the circumstances in which such special damage could arise); loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; and/or loss or corruption of data.
21. The exclusions in 19-21 above apply to the fullest extent permitted at law. Holition does not exclude liability for death or personal injury caused by the negligence of Holition, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation and/or any other liability which may not be excluded by law.
22. Holition’s total liability (however arising) in connection with this Licence or any collateral contract, is limited to the Licence Fee paid to Holition by You in the year in which the claim is made.
YOUR USE OF “FACE BY HOLITION”:
23. Holition will licence the Software to You for payment of the Licence Fee.
24. This Licence is non-exclusive basis for use described in the SOW and subject to the terms of this Licence.
25. You shall pay HOLITION the Licence Fees for the Term as shown in the SOW. If payment terms are not shown in the SOW, the Licence Fees are due in advance. Licence Fees are exclusive of VAT and any relevant local sales taxes, and You agree You are responsible for these.
26. You can make one backup copy of the Software for Your lawful use. You will record the number and location of all copies of the Software and take steps to prevent unauthorised copying of it.
27. You will ensure that the Software is used only as provided in this Licence and the SOW and is installed only on equipment designated in the SOW.
28. You will notify HOLITION as soon as You become aware of any unauthorised use of the Software by any person.
29. You will pay for broadening the scope of the licence granted under this Licence to cover the unauthorised use at a rate equal to the fees which HOLITION would have charged in accordance with its current commercial terms had that use been authorised use on the date when it commenced (together with interest for late payment in 4.
30. You warrant that You will use the Software only as specified in the SOW and You acknowledge that additional fees may be payable on any change of use of the Software by You.
31. You warrant that all Client Material and/or data provided by You to Holition belongs to You or is licensed to You and that You have secured appropriate rights to use it.
32. You warrant that You will not adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by You), and should such actions be required, You shall request HOLITION to carry out such action or to provide such information (and shall meet HOLITION's reasonable costs in providing that information).
33. You may not use any such information provided by HOLITION or obtained by You from use permitted under clause 28 to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
34. Except with Holition’s prior written consent, You warrant that You will not (i) sub-license, assign or novate the benefit or burden of this Licence in whole or in part, (ii) not charge, lien or encumber the Software.
35. During the Term and for 3 years after You will keep all Holition Confidential Information secret and will not use Holition’s Confidential Information for Your own purposes (other than implementation of this Licence) without prior written consent.
36. You will use all reasonable endeavours to prevent unauthorised disclosure of Holition Confidential Information. Restrictions of confidentiality in this Licence do not apply to disclosure required by any law or to information that is already in the public domain at the time of disclosure, or which subsequently becomes public knowledge other than by breach of these term.
37. You will permit HOLITION to monitor and inspect Your use of the Software to ensure compliance with the terms of this Licence, on reasonable advance notice from Holition.
38. You fully indemnify and hold HOLITION harmless against any loss or damage which it may suffer or incur as a result of Your breach of the terms of this Licence.
EXPIRY & TERMINATION OF THIS LICENCE:
39. This Licence will expire at the end of the Term unless Holition and You agree in advance that it shall be renewed on payment of a further licence fee.
40. Either party may terminate this Licence immediately if:
a) the other party fails to pay any amount due under this Licence on the due date for payment and remains in default 7 days after being given written notice to pay;
b) the other party commits a material breach of any of this Licence which cannot be remedied or, if it can be remedied, it is not remedied within 7 days of notice to do so;
c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts, or a petition, notice, resolution or order is filed or passed or an application or order is made in connection with the intention to appoint n administrator or winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation or solvent reconstruction or there is a change of control of the other party whereby ownership of a majority of the shares in it changes or if any event occurs, which has an effect equivalent or similar to any of the events before mentioned.
41. Termination or expiry of this Licence shall not affect any rights, remedies, obligations or liabilities of You or Holition that have accrued up to the date of termination or expiry.
42. Any provision of this Licence that expressly or by implication is intended to come into or continue in force on or after termination or expiry of it shall remain in full force and effect.
43. On termination for any reason (i) all rights granted to You under this Licence cease (ii) You shall cease all use of the Software and (iii) immediately pay to Holition any Licence Fees and other sums due to it.
44. This Licence and the SOW contain the whole agreement between You and Holition relating to the Services and supersedes all prior agreements with respect to its subject matter.
45. You acknowledge that You did not rely on any representation other than as expressly set out in this Licence and that the only rights and remedies available in connection with that representation shall be for breach of contract.
46. If any provision or part-provision of this Licence is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable and the parties shall negotiate in good faith to ensure the modification achieves the intended commercial result of the original provision. If that is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Licence.
47. A person who is not a party to this Licence shall not have any rights under it to enforce any term of this Licence but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
48. Nothing in this Licence is intended to, or shall be deemed to, establish any partnership or joint venture between You and Holition or construe any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
49. The definitions and rules of interpretation that apply in this Licence are shown at the end of this Licence.
50. No failure or delay by You or Holition to exercise any right or remedy provided under this Licence or by law shall constitute a waiver of that or any other right or remedy, and no single exercise of ay right or remedy will prevent or restrict further exercise of that or any other right or remedy either.
51. Neither You nor Holition shall be in breach of this Licence or liable for delay in performing any of obligations under them if such delay or failure result from events, circumstances or causes beyond Your or Holition’s reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 20 weeks, the party not affected may terminate this Licence by giving 14 days' written notice to the other.
52. Notices required must be given in writing and may be delivered by hand or by pre-paid first-class post or other next working day delivery service to the other parties’ principal place of business or sent by email with sent, received and read tags affixed to the email address of the MD or CEO of the company. Notices shall be deemed received if delivered by hand, on signature of a delivery receipt; if sent by pre-paid first-class post or other next working day delivery service, at 10.00 am the day after sending; if sent by email, within 2 hours of the time stamp on the read receipt.
53. Variations to this Licence may only be made in writing and must be signed by both You and Holition.
54. These terms and any dispute or claim arising in connection with them shall be governed by and construed in accordance with the law of England and Wales and the parties irrevocably agree that the courts of England and Wales shall 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).
DEFINITIONS AND INTERPRETATION USED IN THIS LICENCE
55. Claim: a genuine legal claim or court action issued against You alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Licence infringes the UK Intellectual Property Rights of a third party.
56. Confidential Information: information that is proprietary to either you or to Holition, which is provided by one party to the other and which could reasonably be considered to be confidential whether or not it is marked as such.
57. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
58. Licence Fee: the licence fee payable by You to HOLITION under 25.
59. Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a new version of the Software.
60. Software: the “FACE” computer program created by Holition to be used by You as described in the SOW for the Term of this Licence and all updates and releases that correct, add functionality, amend or upgrade the Software.
61. SOW: the specification detailing the Services to be provided to You by Holition, the timeline for delivery of those Services, the Licence Fees and the Term.
62. Term: the period during which the Software will be provided as shown in the SOW, or if no period is shown 12 months from the date of first use of the Software by You.
63. Warranty Period: means a period of 60 days from the Delivery Date.
64. Clause, Schedule and paragraph headings shall not affect the interpretation of this Licence. The Schedules and Annexes form part of this Licence and shall have effect as if set out in full in the body of this Licence. Any reference to this Licence includes the Schedules and Annexes.
65. Unless the context otherwise requires, words in the singular include the plural and vice versa; references to clauses are to the clauses of this Licence; references to a statute or statutory provision is a reference to it as in force as at the date of this Licence; a “person” includes a natural person, corporate or unincorporated body and 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.
66. In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in the schedules or appendices, the provision in the body of this Licence shall take precedence.
Holition Limited, company number 06513442 . Registered office, Thavies Inn House, High Holborn, London EC1N 2PL, UK