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These terms, including any schedule/s hereto (Terms) govern the use of Defeyene Legal Solutions Limited’s t/a Definely (Definely) Software. By providing the opportunity to subscribe for, access, download and/or order the Software, Definely makes an offer to you on these Terms. You accept these Terms by creating a Definely account, by downloading the Software and/or by using the Software. If you are agreeing to these Terms not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to these Terms and you warrant your legal authority to do so.
1. Account and Authorised Users
1.1 You must create an account with Definely in order to access or receive the Software and associated services. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. To protect your account, keep your account details and password confidential. You are responsible for all activity that occurs under your Definely account. You cannot transfer your Definely account credentials to another user or entity.
1.2 Only Authorised Users may access and use the Software. You are responsible for compliance with these Terms by all Authorised Users.
2. Use of the Software
2.1 Definely grants you a non-transferable, non-exclusive, limited licence to install and use the relevant Software during the Licence Term in accordance with the these Terms (the Licence).
2.2 You shall not, and shall not attempt to:
(A) transfer, sell, resell, rent, lease, assign, distribute, display, disclose, licence, lend or otherwise commercially exploit the Software, the Licence or Documentation, nor make them available or provide access, to any third party;
(B) modify the Software or merge it with any other software;
(C) decompile, reverse engineer, adapt, develop, disassemble, analyse or access the source code of all or any portion of the Software, and/or Documentation (as applicable) in any form or media or by any means, save as permitted by applicable law in the United Kingdom;
(D) interfere with any license key mechanism in or used to access the Software or otherwise circumvent mechanisms in the Software intended to limit your use;
(E) use the Software in a manner which contravenes any applicable laws and regulations;
(F) copy the Software; and
(G) use the Software for the benefit of any third party.
2.3 You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. Definely will have no obligations or responsibility under these Terms for issues caused by your use of any third-party hardware or software not provided by Definely.
3.1 All right, title, interest (including all Intellectual Property Rights) and ownership in the Software, any Documentation and any enhancements remain vested in Definely or Definely’s third party licensors at all times and you have only those rights to use the Software and Documentation as set out in these Terms.
3.2 From time to time, you may choose to submit Feedback to us. Definely may in connection with any of its products or services freely use, copy, disclose, licence, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits Definely’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
3.3 In providing you with the Software, Definely may provide you with materials such as documents, schematics, test equipment, software (including diagnostic software) and associated media. All such materials shall remain the exclusive property of Definely and shall be for Definely’s sole use and may not be reproduced in any form.
4. Intellectual Property
4.1 Definely shall retain all Intellectual Property Rights in and to the Software and any subsequent enhancements and derivatives to the Software. Except as expressly agreed in writing, no Intellectual Property Rights are transferred or licensed (whether implied or otherwise) to you as a result of the execution of these Terms and the performance of the activities contemplated hereunder.
4.2 The terms of this clause 4 shall survive termination of these Terms.
5. Payment and Trial Periods
5.1 You will pay all fees in accordance with each Order as detailed and in the currency specified in your account. All fees shall be paid annually in advance. All amounts paid by you are non-refundable, non-canceable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, upgrades, additional users or Software, expenses and unpaid fees, as applicable. Definely may also (at its discretion and in addition to other remedies it may have) suspend access to the Software if any invoice or amount remains unpaid for more than 7 days.
5.2 Definely may offer certain Software to you at no charge, including free accounts, trial use and beta version for a defined time period (collectively, the Trial Software). Your use of the Trial Software is subject to these Terms as well as any additional terms that we specify and is only permitted during the time period we designate.
5.3 Your fees under these Terms exclude any sales, use, value-added, or other similar taxes or duties, payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Definely, you must pay to Definely the amount of such taxes or duties in addition to any fees owed under these Terms. Definely will invoice you in respect of any applicable tax.
6. Term and Termination
6.1 The Licence Term will commence on the date that payment is made by you for the Software as indicated on the relevant invoice and continue in full force and effect until expiration of all Orders, unless earlier terminated in accordance with these Terms. Upon the expiration of the Initial Term, the Licence Term will automatically renew for successive 12-month terms, unless you elect in your account for automatic renewal not to take place, which election must take place not more than 30 days prior to the expiration of the then-current Licence Term.
6.2 Either party shall be entitled, without prejudice to its other rights under these Terms, to terminate these Terms by providing written notice to the other on or at any time after the occurrence of any of the following events: (i) a material breach by the other party of an obligation under these Terms and, if the breach is capable of remedy, the other party failing to remedy the breach within 10 days of receipt of a written notice of such breach; (ii) the other party passing a resolution for its winding-up or a court of competent jurisdiction making an order for the other party’s winding-up or dissolution; (iii) the making of an administration order in relation to the other party, or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of the other party; (iv) the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or (v) any event analogous to those set out in paragraphs (i) to (iv) in any relevant jurisdiction.
6.3 Definely may terminate these Terms by written notice with immediate effect if at any time during the Licence Term Definely believes that the continuation of the activities of these Terms may be in conflict with any applicable legal, regulatory or professional obligations or restrictions applicable to Definely. Definely shall inform you as soon as reasonably practical of any situation that occurs which may create a professional conflict which could result in termination in accordance with this clause.
6.4 Any provisions of these Terms which either expressly, or by their nature, extend beyond the expiry or termination of these Terms shall survive such expiration or termination. For the avoidance of doubt the provisions of clauses 9 (Confidentiality), 4 (Intellectual Property), 7 (Warranties and Disclaimer) and 8 (Limitation of Liability) shall survive expiration or termination of these Terms.
6.5 On termination of these Terms for any reason:
(A) all licences granted by one party to the other under these Terms shall immediately terminate and the licensee shall stop using all of the other party’s Intellectual Property Rights, including, for the avoidance of doubt, the Software, which were licenced under these Terms; and
(B) you will remove the Software from your laptop and/or desktop, including those of the Authorised Users.
7. Warranties and Disclaimer
7.1 Each party represents and warrants that it has the legal power and authority to enter into these Terms and that it has no outstanding agreement or obligation that conflicts with any of the provisions of these Terms, or that would preclude it from complying with the provisions hereof.
7.2 EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND DEFINELY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. DEFINELY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DEFINELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER DEFINELY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) ALTHOUGH DEFINELY MAKES REASONABLE EFFORTS TO ENSURE THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
8. Limitation of Liability
8.1 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) EXCEED THE FEES PAID OR PAYABLE BY YOU TO DEFINELY HEREUNDER DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
8.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, OR LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9.1 The parties acknowledge that each may have, by virtue of these Terms, access to Confidential Information. Each party shall protect the confidentiality of the Confidential Information with the same degree of care used by such party to protect the confidentiality of its own Confidential Information, but in no event less than a reasonable degree of care. Provided that either party may disclose the Confidential Information solely to the extent required by subpoena, court order or other governmental authority after giving prompt notice to the other party of its intention to disclose.
9.2 Each party shall be responsible for a breach of confidentiality by its employees, members, partners or officers and any other of its affiliates having access to the Confidential Information.
9.3 Each party acknowledges that the Confidential Information is commercially valuable, proprietary information and that damages would not be an adequate remedy for breach of this clause 9 and therefore, the non-breaching party (without limiting its other rights and remedies) shall be entitled to seek such equitable remedies as are available at law in relation to any threatened or continuing breach of this clause 9.
9.4 Each party will return or destroy the other party’s Confidential Information in its possession on termination or expiration of these Terms or on the other party’s written request
9.5 This clause 9 shall survive termination of these Terms.
10. Force majeure
Definely shall have no liability to you under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Definely or any other party), failure of a utility service or transport or telecommunications 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, flood, fire, storm or default of suppliers or sub-contractors, provided that the you are notified of such an event and its expected duration and Definely uses its reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations (each such event being a “Force Majeure Event”).
Any notice or other communication to be given under these Terms must be given in writing. Define may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first Business Day after we send it. You will provide notice to us by post to Defeyene Legal Solutions Limited, 19 Edenvale Road, Mitcham, London, CR4 2DP, Attn: General Counsel.
12. Publicity Rights
You permit Definely to use your name and logo to identify you as a customer on Definely’s website and in its marketing materials. Definely will promptly stop doing so upon your request sent to firstname.lastname@example.org.
13. Entire Terms
13.1 These Terms constitutes the whole and only agreement between the parties relating to the subject matter of this Terms.
13.2 Except in the case of fraud, each party acknowledges that in entering into these Terms it is not relying upon any pre-contractual statement which is not set out in these Terms.
13.3 Except in the case of fraud, no party shall have any right of action against any other party arising out of or in connection with any pre-contractual statement except to the extent that it is repeated in these Terms.
13.4 For the purposes of this Clause, “pre-contractual statement” means any draft, agreement, undertaking, representation, warranty, promise, assurance or arrangement of any nature whatsoever, whether or not in writing, relating to the subject matter of these Terms made or given by any person at any time prior to these Terms becoming legally binding.
14. Contract (Rights of Third Parties) Act 1999
The parties to these Terms do not intend that any of these Terms should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to these Terms.
15. Governing law and jurisdiction
15.1 These Terms are governed by and shall be construed in accordance with English law. Any matter, claim or dispute arising out of or in connection with these Terms, whether contractual or non-contractual, is to be governed by and determined in accordance with English law.
15.2 The courts of England and Wales are to have exclusive jurisdiction to settle any dispute whether contractual or non-contractual arising out of or in connection with these Terms. Each party irrevocably submits to the exclusive jurisdiction of the Courts of England and Wales.
Effective from: 13th September 2021
Schedule 1 – Definitions and Interpretation
In these Terms, except where the context otherwise requires, the following words shall have the following meanings:
Authorised User means the specific individuals whom you designate in the licence manager mechanism to use the applicable Software;
Business Day means a day other than a Saturday, Sunday or public holiday in the United Kingdom;
Confidential Information means confidential or proprietary information, including but not limited to details relating to this Terms, the Software, the Documentation, trade secrets, Personal Data any information clearly identified at the time of disclosure as confidential, but shall not include information that:
is or becomes a part of the public domain through no act or omission of the receiving party;
is lawfully disclosed to the receiving party by a third party without an obligation of nondisclosure or secrecy; or
was already in the receiving party’s possession prior to the commencement of the Licence Term.
Data Protection Legislation means the Data Protection Act 2018 and the General Data Protection Regulation (2016/679), as amended or replaced from time to time, and any applicable laws implementing it;
Documentation means the FAQ, tutorial and installation guides and other documentation made available to you by Definely from time to time in connection with the delivery of the Services;
Feedback means comments, questions, ideas, suggestions or other feedback relating to the Software, support and maintenance or any other services.
Force Majeure Event has the meaning given to it in Clause 10;
Initial Term means 12 months from the commencement of the Licence Term as determined in accordance with clause 6.1;
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks, trade names, service marks and domain names, rights in get-up and trade dress, goodwill and the rights to sue for passing off or unfair competition, design rights, semi-conductor topography rights, database rights, confidential information (including know-how and trade secrets and the rights to use and protect confidential information) and all other intellectual property rights, in each case whether registered or unregistered and including all applications, registrations granted pursuant to any of the applications 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;
Licence means the licence in respect of the Software granted by Definely to you in accordance with clause 2.1;
Licence Term means the Initial Term and any Subsequent Terms as more fully set out in clause 6;
Order means Definely’s applicable ordering documentation or other purchase flow referencing these Terms. Orders may include purchases of Software licences, additional users, or increased or upgraded packages;
Personal Data means all information about an individual that is personal data for the purpose of the Data Protection Legislation and which is provided by you to, or collected or held by, Definely in connection with these Terms.
Services means the drafting and reviewing add-in subscription service provided by Definely and delivered to you via the Licence and as set out in accordance with these Terms and the Documentation;
Software means Definely’s commercially available downloadable software products available on its website (www.definely.com), including any Trial Software. Your account will specify the Software that you may use;
Subsequent Term means each 12 month period following the Initial Term; and
Terms means these software licence terms.