By accepting this agreement or using the software, you agree to all of these terms
ZoneFox Holdings Ltd (“the Company”), a company incorporated in Scotland with registered number SC350938 whose registered office is at Citypoint, 65 Haymarket Terrace, Edinburgh, EH12 5HD, United Kingdom.
Your Company (“Licensee”)
1. ZoneFox is supplied by ZoneFox Holdings Limited under a non-exclusive and non-transferable software licence (“Licence”) and is subject to the following express terms and conditions (the “Agreement”) and no additions or variation thereof shall apply unless expressly agreed in writing.
a. The product that this Agreement refers to is the ZoneFox Run-Time Environment (“ZF-RTE”), which is a product of the Company.
b. In this Agreement, Licensee refers to the person or organisation that has purchased or otherwise been supplied with a ZF-RTE.
c. The ZF-RTE consists of object libraries to be linked and run on a platform detailed in this Agreement.
d. In consideration of the obligations of the Company in the Agreement, ZoneFox is licensed on a non-transferable basis for use by or on behalf of the Licensee for use on their internal systems.
e. ZF-RTE is licensed for use only in connection with the Licensee, its employees, third parties and the servers specified in the Agreement. The license granted to the Licensee on the terms of this Agreement shall only include the features of ZF-RTE that are included in the Licensee's current License Fees package. In the event that the Licensee upgrades or degrades its Licence Fee package the features of ZF-RTE that are included within the licence granted on the terms of this Agreement shall automatically change to reflect the features of ZF-RTE listed for the upgraded or downgraded License Fee package.
f. For the avoidance of doubt, this Licence does not include rights to the detailed designs, source code or documentation of ZoneFox or rights to resell ZF-RTE.
g. The Company shall provide and supply the services as set out at zonefox.com/services (“Services”), and support of such software to the extent and in the manner set out in the support schedule set out at zonefox.com/SLA.
3. Term and Termination.
a. The Term of this Licence is set forth in the attached proposal document subject to b. below. Subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per- unit pricing during any renewal term will increase by up to the RPI% above the applicable pricing in the prior term, unless The Company provides the Licensee notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Agreement, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
b. Where the support schedule referred to above grants an initial Proof of Value Licence, during any such initial 30 day period the Licensee may use ZF-RTE on the terms of this Licence but no licence fee shall be payable. However, all rights to use ZF-RTE will terminate automatically on expiry of 30 days after commencement of the Proof of Value Licence. If the Licensee wishes to use ZF-RTE after such 30 day period a new licence will require to be entered into by way of the Licensee confirming in writing that in return for its payment to the Company of a license fee (which shall be confirmed by the Company in writing), it agrees to the terms of this License continuing subject to clauses 3a and 3c.
c. Either of us may terminate the agreement between us if (a) the other breaches the agreement in a material way and (if capable of rectification) does not rectify that breach within 30 days of notification, or (b) the other suffers any act or proceeding, or takes any action, in respect of its insolvency. In the event Licensee terminates this Licence pursuant to this section, Company shall immediately issue to Licensee a refund equal to the amount of the total fees paid by Licensee, prorated by the amount of time remaining in the Term. A material breach shall be defined as “a valid Priority 1 issue which is not fixed or remedied to a level acceptable to both parties, or direct contradiction of any part of the standard terms and conditions on this page”
a. The Licensee may not make any copies of ZF-RTE except such copies as are reasonably necessary for back-up purposes. Any such copies are subject to the conditions of the Licence. Documentation may not be copied for any reason without the Company's consent. All copies shall be destroyed by the Licensee on termination of this Licence.
5. Licence Fees
a. ZF-RTE is licensed subject to the payment as outlined in this Agreement.
b. The term of the Licence hereby granted shall commence on the signing of this Agreement and shall continue for a term as outlined in accordance with the Agreement.
6. Property rights and confidentiality
a. ZF-RTE and all materials and information which has, or will come into the possession or knowledge of the Licensee in connection with the Agreement, or performance thereof, remains the property of the Company or its suppliers and consists of confidential and proprietary data whose disclosure to or use by third parties may be damaging.
b. The Licensee agrees to hold ZF-RTE and all such materials and information in the strictest confidence and not to disclose or make available ZF-RTE to any third party or to its employees except in confidence and then only as is necessary to facilitate the use for which ZF-RTE is licensed.
c. The Licensee shall not cause or permit any reverse engineering, modification, adaptation, translation, disassembly or de-compilation of any of ZF-RTE.
d. Nothing in this Agreement invalidates or modifies any previously signed Non-Disclosure Agreements between the parties.
a. The Company shall not be obliged to provide any amendments to ZF-RTE other than those specifically contracted for.
8. Intellectual Property
a. Intellectual Property includes all patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, design rights, rights affording protection to copyright, semiconductor topography rights, trademarks, service marks, logos, domain names, business names, trade names, moral rights and all registrations or applications to register any of the aforesaid items, rights in the nature of any aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing off. The Company retains all Intellectual Property in its own products and systems (the “Company IP”) and all such Intellectual Property shall remain the exclusive property of Company.
b. The Company represents, warrants and undertakes that: (a) it has the right to make and to supply Company IP to the Licensee under this Agreement; (b) it will not be in violation of any third party intellectual property rights or other rights in making and supplying to the Licensee the Company IP; and (c) the use by the Licensee of Company IP will not infringe any intellectual property rights of a third party.
c. The Licensee shall forthwith notify the Company of any claim or demand made or action brought against the Licensee for infringement or alleged infringement of any Intellectual Property in respect of ZF-RTE and shall not make any comment or admission to any third party in respect thereof. The Company shall have conduct of all proceedings or negotiations relating to such allegations or claims and shall deal with the same as it sees fit in its absolute discretion. The Licensee shall provide all reasonable assistance to the Company in relation to the conduct of such litigation and/or negotiations.
9. Unauthorised use
a. If any unauthorised modification is made to ZF-RTE then the Licensee shall be deemed to be in breach of contract and Company shall be entitled to terminate the Licence forthwith, and in the meantime the Licensee continued use of ZF-RTE shall be regarded as unauthorised.
b. If any unauthorised use is made of ZF-RTE and such is attributable to any act or default of the Licensee, then without prejudice to the Company’s other remedies, the Licensee will immediately be liable to pay the Company an amount equal to the charges which would have been payable had the Company granted a Licence to the unauthorised user at the beginning of the period of unauthorised use.
10. Force Majeure
a. Neither party shall be liable for failure to perform its obligations under the Contract if such failure results from circumstances beyond the party's reasonable control.
a. The Licensee may not assign, novate or subcontract the Licence or any of its rights or obligations under the Licence. The Company may assign, subcontract, novate or charge all of its rights or interests or obligations under the Licence to any third party.
a. The Company warrants that the Service will be performed with due diligence and professional standards of care and that the Service will conform in all material respects to its specification, provided that the Company will not be liable for breach of any such warranty unless the breach is reported to the Company within three months after completion of the Service and, having been given reasonable opportunity by the Licensee to rectify any such breach, the Company fails to do so promptly and without additional charge to the Licensee.
b. For the avoidance of doubt where the provision of a Service involves the supply of any item of software, the Licensee will not be entitled to error correction, updates and amendments to such items of software under this Contract after the date of acceptance unless otherwise agreed in the Contract. Such services may be available from the Company under its Terms and Conditions of Software Support at its then current prices.
c. The Company’s obligations under the above warranty shall be its sole liability and it shall have no other liability whatsoever whether in contract, tort or otherwise as regards the quality or fitness for purpose of the Service and all other representations, conditions, warranties and terms in respect thereof whether express or implied, statutory or otherwise are hereby excluded save to the extent that the same are not capable of exclusion at law.
13. Limit of liability
a. Notwithstanding anything to the contrary in the Contract, the Company shall not be liable for any claims for indirect or consequential losses, loss of business, data, profits, revenue, goodwill, use, or anticipated savings or damage suffered arising from any use, or inability to use, any item supplied under this licence or from any breach of the Contract (whether or not the other party was advised of, or knew of, the possibility of such losses) or loss or damage to the other party's data or records whether arising from negligence or otherwise.
b. The Company’s entire liability to the Licensee for all claims made in respect of or in connection with the Contract whether in contract, for misrepresentation (other than fraudulent misrepresentation), delict (including, but not limited to, negligence) or under statute and however and whenever arising shall not exceed the total sums paid by the Licensee under this document.
a. Using standard Google analytics to analyse the Licensee’s use of and journeys within ZoneFox including, but not limited to, the pages visited and the time spent on each page of ZoneFox by the Licensee, in order to further develop and enhance ZoneFox.
b. Recording how many licences have been used by the Licensee and assessing the suitability of the Licensee’s current contractual relationship with the Company.
i. The company on a full time or occasional basis monitors use of ZoneFox by the Licensee as well as data stored within the ZoneFox servers utilised by the Licensee for the purposes of:
In carrying out the above monitoring activities, the Company will not access or collect any of the Licensee’s confidential or personally identifiable information. The Licensee’s use of ZoneFox constitutes its agreement to the monitoring of ZoneFox by the Company as well as its use of information relating to the Licensee in the manner and for the reasons specified in this note, and the Licensee’s acknowledgement that this notice and consent does not limit any right to monitor ZoneFox or use information that may otherwise arise under applicable law now or in the future.
15. Data Protection and Privacy
a. For the purposes of this clause 15:
i. “Data Protection Legislation” means any law applicable relating to the processing, privacy and use of personal data, including: (i) the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426 (both as amended), and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive) or Directive 2002/581EC; (ii) the General Data Protection Regulation (EU) 2016/679, and/or any corresponding or equivalent national laws or regulations; and/or (iii) any judicial or administrative implementation of any of the above, any guidance, guidelines, codes of practice, codes of conduct or approved certification mechanisms issued by the Information Commissioner’s Office, or other regulatory or supervisory authority responsible for administering Data Protection Legislation; and
ii. the terms “Controller”, “Data Controller”, “Data Processor”, “Data Subjects”, “Personal Data”, “Processor” and “Processing” (including any derivatives thereof) shall have the meanings given to them in the Data Protection Legislation;
b. In the event that the Company is required to Process any Personal Data on behalf of the Licensee as Processor or Data Processor in relation to the Services (“Licensee Personal Data”), the Company shall:
i. Process the Licensee Personal Data in accordance with the Data Protection Legislation, the terms of this Agreement and the Licensee’s instructions (and not otherwise unless alternative Processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and the Company shall inform the Licensee of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest);
ii. if the Company believes that any instruction received by it from the Licensee is likely to infringe the Data Protection Legislation, it shall promptly inform the Licensee and be entitled to cease to provide ZF-RTE, the Licence and/or the relevant Services until the parties have agreed appropriate amended instructions which are not infringing;
iii. taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing of the Licensee Personal Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the Processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Licensee Personal Data transmitted, stored or otherwise Processed, the Company shall implement appropriate technical and organisational security measures appropriate to the risk, including (as appropriate) those matters mentioned in the Data Protection Legislation;
iv. not permit any Processing of the Licensee Personal Data by any sub-contractor without the written authorisation of the Licensee and, where the Licensee’s written authorisation is given, ensure that such sub-contractors are subject to written contractual obligations concerning the Licensee Personal Data which are no less onerous than those imposed on the Company under this Agreement;
v. ensure that all persons authorised by the Company to Process the Licensee Personal Data are subject to a duty of confidentiality in respect of the Licensee Personal Data;
vi. not Process and/or transfer the Licensee Personal Data to countries outside the European Union or to any international organisation without the prior written authorisation of the Licensee;
vii. in accordance with the Data Protection Legislation, make available to the Licensee such information that is in its possession or control as is necessary to demonstrate the Company’s compliance with the obligations placed on it under this clause 15 and to demonstrate compliance with the obligations on each party imposed by the relevant provisions of the Data Protection Legislation, and allow for and contribute to audits, including inspections, by the Licensee (or another auditor mandated by the Licensee) for this purpose (subject to a maximum of one audit request in any twelve (12) month period under this clause 15(b)(vii)); and
viii. at the end of the provision of the Services relating to the Processing of Licensee Personal Data, at the Licensee’s cost and the Licensee’s option, the Company shall either return all of the Licensee Personal Data to the Licensee or securely dispose of the Licensee Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Company to store such Licensee Personal Data.
c. The Company shall (at the Licensee’s cost):
i. assist the Licensee in ensuring compliance with the Licensee’s obligations pursuant to the relevant obligations under the Data Protection Legislation, taking into account the nature of the Processing and the information available to the Company; and
ii. taking into account the nature of the Processing, assist the Licensee (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Licensee’s obligations to respond to requests for exercising the Data Subjects’ rights under the relevant provisions of the Data Protection Legislation in respect of any Licensee Personal Data.
d. Processing of the Licensee Personal Data by the Company under this Agreement shall be for the following subject-matter, duration, nature and purposes and involve the following types of Personal Data and categories of Data Subjects:
i. Subject-matter of processing: the Company Processes the Licensee Personal Data as necessary to deliver and provide the Licence and the Services.
ii. Duration of the Processing: the Term of this Agreement or as otherwise agreed between the parties.
iii. Nature and purpose of the processing: To provide technical support to the customer in relation to the ZoneFox data that the Company has chosen to collect.
iv. Type of Personal Data: For those users where the Company chooses to use ZoneFox to record their activities - Computer User Names (“Logon Name”), the Computer Machine Name, Names of Computer Files (and whether they create, update or delete these files but not the contents of those files), SQL Query strings where the Company monitors a database, Names of Computer Applications used by users, IP addresses used by those users and the dates and times of all the above.
v. Categories of Data Subjects: Those employees, contractors or partners that the Company chooses to monitor through deployment of the ZF-RTE.
e. The Licensee shall indemnify and keep indemnified the Company against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other snot arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Licensee of its obligations under this clause 15.
a. Unless otherwise agreed in writing, the Contract shall be construed and interpreted in accordance with the laws of Scotland and the parties hereby submit to the exclusive jurisdiction of the Scottish Courts.