Master Licence Agreement
Version 3.2, December 2023
THESE TERMS AND CONDITIONS GOVERN THE LICENCE AND USE OF THE PROFESSIONAL SERVICES AND SOFTWARE SOLUTIONS OWNED BY PROVAR LIMITED, AN ENGLISH COMPANY NO. 08999736 ,(“Service”). THIS AGREEMENT IS EFFECTIVE AS OF THE FIRST DATE THAT YOU USE THE SERVICE OR THE EFFECTIVE DATE SET FORTH ON THE ORDER FORM (“Effective Date”).
1. SUBSCRIPTION TO SERVICE.
Subject to the terms of this Agreement, Provar hereby grants You a non-exclusive, non-transferable (except as permitted herein), non-sub-licensable, worldwide, limited license to install and use each Provar-owned software product (“Software”) during the term specified in the associated Order Form. Each License includes the right for You to: i) use the relevant Software on different devices and by different users (subject to any geographical, business use or other restrictions stipulated in the Order Form); and ii) to install the relevant Software within a virtual (or otherwise emulated) hardware system provided that the use of the Software and the virtual machines are run on hardware owned by or leased to You (and use on any other hardware is not licensed under a License). If the Order Form specifies that it is for a “Named User License,” then only the person registered as the license holder may use the relevant Software. If the Order Form specifies that it is for a “Floating License,” then You shall not permit the number of users simultaneously running or using the relevant Software to exceed the number of Licenses purchased. If the Order Form specifies that a license is for an “Execution License,” then You shall not permit the number of testing scripts being simultaneously executed via a remote node by the relevant Software to exceed the number of Execution User Licenses purchased. Provar reserves all rights not expressly granted to You in this Agreement. You may allow Your Affiliates access and use of the Software. You are solely liable and responsible for Your Affiliates’ access and use of the Software and compliance with the terms and conditions of this Agreement. You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations (“Applicable Laws”) in connection with Your use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. Each License is subject to a restriction that the Software can only be used for the purposes of testing Salesforce.com instances and/or configurations.
This Agreement shall come into force on the Effective Date and, unless terminated earlier in accordance with the provisions of this Agreement, it shall continue in force until the end of the last to expire of the License terms as set forth in the Order Form. Each term shall continue for the duration set forth in the Order Form and, thereafter, shall be automatically extended for successive periods of 12 months, unless: either party notifies the other party of termination of that Term, in writing, at least 35 days before the end of the then current term; or this Agreement (or the relevant term) is otherwise terminated in accordance with the terms of this Agreement. Products listed under the “Non-subscription Products” table in the Order Form will be valid for the time period set forth in the Order Form and will not automatically renew at the end of the term. One Off Products must be used during their term, or they will be forfeited by the Customer.
Except as expressly permitted under this Agreement or by applicable law, You shall not: (i) reverse engineer, decompile, disassemble or separate for use on more than one computer, place for distribution, sale, or resale as individual creations by You, the Software and/or its constituent parts; (ii) alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form; (iii) rent, lease, or sub-license the Software; (iv) unless otherwise expressly agreed in a separate written agreement between You and Provar (a) use, or permit the use of the Software on a timeshare or service bureau basis, (b) host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason; (c) create derivative works based upon the Software; or (v) publish or share any views or data about the performance of any Software, including any comparison and/or benchmarking against other software products.
4. FEES, BILLING, RENEWAL.
Fees for the Service are described in an associated Order Form. Any renewal charge will be based on the then-current fees. Provar can modify the prices by providing You at least 35 days’ prior notice before the next renewal term. The Fees exclude all VAT or any relevant local sales taxes, use, excise, import or export, value added, governmental permit fees, license fees, and customs for which You shall be responsible. If You are legally obliged under applicable tax law to withhold any amount of any payment to Provar, then the amount of the payment to Provar shall be automatically increased to totally offset such tax, so that the amount remitted to Provar, net of all taxes, equals the amount invoiced or otherwise due. You will promptly furnish Provar with the official receipt of `payment of these taxes to the appropriate taxing authority. You may provide Provar with a certificate of exemption acceptable to an applicable taxing authority.
5. TERMS OF PAYMENT.
Provar will issue an invoice to You on or about the Effective Date and on or about 30 days before the subsequent anniversary of the Effective Date for renewal terms as specified in the associated Order Form. Such fees shall be paid annually in advance. Undisputed fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying Provar of any changes to such information. All payment obligations are non-cancellable, and all amounts paid are non-refundable, except as expressly set forth in the Agreement to the contrary. If fees are overdue by 30 or more days, the overdue fees may be subject to a late charge of 2% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection, provided such invoiced amount has not been reasonably disputed by You in which case Provar will not charge a late fee while the parties work together to resolve the disputed amount(s) in good faith. If You or Provar initiates termination of this Agreement, You will be obligated to pay the balance due on Your account.
6. SUSPENSION AND TERMINATION.
If You are in breach of this Agreement, Provar may suspend Your access to and use of the Service until You have cured the breach. Additionally, either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach within 30 days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason: (a) any amounts owed to Provar by You under this Agreement before such termination will become immediately due and payable, and (b) Provar will terminate Your access to or use of the Software. If this Agreement is terminated by You in accordance with this paragraph due to Provar’s uncured breach, Provar will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve You of Your obligation to pay any fees payable to Provar for the period prior to the effective date of termination.
7. INTELLECTUAL PROPERTY OWNERSHIP.
Provar and its licensors own all rights, title and interest, including all related Intellectual Property Rights, in and to the Provar System, Content and Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Software. The Provar name, the Provar logo, and the product names associated with the Service are trademarks of Provar or third parties. You retain all right, title and interest in and to Your Customer Data. You grant to Provar all necessary licenses and rights in and to Your Customer Data solely as necessary for Provar to provide the Service to You or as required by law. Provar will not knowingly use or access any Customer Data except as necessary to provide the Service.
Provar agrees to use Your Confidential Information solely in the performance of this Agreement and agrees that it will not use, disclose, or permit the use or disclosure of Your Confidential Information to any third party except as permitted under this Agreement or with your prior written consent. Provar will maintain the confidentiality of Your Confidential Information with at least the same degree of care that it uses to protect is own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. Provar will not disclosure any of your Confidential Information to employees or to any third parties except those who have a need to know such information in connection with providing the Software or Service hereunder and who have agreed to abide by non-disclosure terms at least as protective of Your Confidential Information as those set forth herein. Provar must immediately give notice to You of any unauthorized use or disclosure of Your Confidential Information.
9. REPRESENTATIONS & WARRANTIES.
PROVAR WILL PERFORM ITS OBLIGATIONS HEREUNDER AND WILL PROVIDE THE SOFTWARE IN A MANNER THAT COMPLIES WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED TO THOSE RELATED TO DATA PRIVACY, INTERNATIONAL COMMUNICATIONS, AND THE TRANSMISSION OF TECHNICAL OR PERSONAL DATA. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PROVAR AND ITS LICENSORS.
Provar agrees to defend, indemnify, and hold harmless You and Your Affiliates, and each of their respective directors, officers, agents, employees, and contractors against any and all suits, actions, proceedings, and claims, asserted or brought by a third party, and any and all liabilities, losses, damages, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with (i) an assertion that the Service, Software, or Content provided under this Agreement, or any part thereof or use thereof, constitutes infringement or misappropriation of the Intellectual Property Rights of a third party; or (ii) Provar’s violation of Applicable Laws. Without limiting the generality of the foregoing, if any Service, Software, Content, or any party thereof, becomes or in Provar’s opinion is likely to become, the subject of a claim of infringement, misappropriation, or other violation of a third party’s Intellectual Property Rights, Provar shall, at its option and expense, either (a) procure for You the right to continue using the Service, Software, Content, or any part thereof, to the full extent provided herein; or (b) replace or modify the Service, Software, or Content in a way that it becomes non-infringing without materially reducing its functionality. If neither of the foregoing options are reasonably feasible, or if Provar fails to take either action within thirty (30) days, Provar shall refund the fees prepaid by You prorated to reflect use of the Service or Software by You prior to commencement of the claim or proceeding described herein.
11. LIMITATION OF LIABILITIES.
THE PARTIES SHALL NOT IN ANY EVENT BE ENTITLED TO, AND NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S ABILITY TO RECOVER FROM THE OTHER PARTY FOR ANY CLAIM SHALL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 11 (LIMITATION OF LIABILITIES) SHALL LIMIT PROVAR’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S LIABILITY FOR BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
12. ASSIGNMENT; CHANGE IN CONTROL.
This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
13. EXPORT CONTROL & ANTI CORRUPTION.
The Software, Content, other technology Provar makes available, and derivatives thereof may be subject to export laws and regulations of the United States, the United Kingdom and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Software or Content in a U.S. or UK embargoed country or in violation of any UK export law or U.S. export law or regulation. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Provar’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Provar’s legal department.
Provar will provide a free Update notification service for the Software during the term of your subscription. An Update notification service may use the Customer’s internal network and Internet connection for the purpose of transmitting license-related data to a Provar-operated Update notification server at appropriate intervals and determine if there is any Update available for the Software and notify the Customer of its availability and will provide the Customer with any such Updates. The Customer shall install all Updates as soon reasonably practicable after receipt of the notification and shall install any Upgrades as soon as reasonably practicable after they are made available to the Customer.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 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 Agreement or its subject matter or formation (including non-contractual disputes or claims). No text or information set forth on any other purchase order, pre-printed form or document (other than an associated Provar Order Form) shall modify the terms and conditions of this Agreement. In the event of a conflict between the terms in the main body of this Agreement and the terms in any Provar Order Form, the Order Form will prevail and control. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by the waiving party in writing. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings, and arrangements between them in respect of its subject matter, whether in writing or oral.
Any notice given to a party under or in connection with this Agreement shall be delivered by email. Any such notice given by the Customer to Provar shall be sent to firstname.lastname@example.org and any notice given by Provar to the Customer shall be sent to the email address for notices specified in the Order Form (or if no such email address is specified, or if that email address is generating rejection notices, then to either : i) any email address specified in the Order Form; ii) any email address previously used by the Customer to communicate with Provar; or iii) any physical address for the Customer specified in the Order Form).
As used in this Agreement the following terms have these meanings:
“Affiliate” means any entity (now existing or hereafter formed or acquired), which, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, another entity. Ownership of fifty percent (50%) or more of the voting stock, membership interests, partnership interests, or other equity of an entity shall be deemed to be in control over such entity.
“Confidential Information” includes, without limitation, any and all technical and non-technical information, including patent, copyright, trade secret, and proprietary information, know-how, processes and software programs, related to the current, future, and proposed business, products, and services of either party, that is designated as confidential or proprietary (in writing or orally), or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information shall not include any information which (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party; (ii) was acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. Your Confidential Information includes Customer Data.
“Provar System” means the hardware, software, network equipment, documentation and other technology used by Provar to deliver the Software, and any other of Provar’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Provar in providing the Service.
“Content” means the visual information, documents, software, products and services contained or made available to You in the course of using the Software, other than Customer Data.
“Customer Data” means all information You or your Users uploads or inputs into the Software or otherwise provides to Provar to enable the provision of the Software or Service.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Order Form” means Provar’s order form validly executed by the Customer and Provar that refers to this Master License Agreement.
“Update” means a software maintenance update, patch or bug-fix that corrects faults, adds functionality or otherwise amends the Software but which does not constitute an Upgrade.
“Upgrade” means a version or release of software intended to have new or improved functionality which from time to time is publicly marketed and offered for purchase by Provar in the course of its normal business, being a version, which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“User(s)” means Your named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Service by You.