These terms and conditions together with the order form or letter to which they are attached (“the Request”) will form a binding contract between the Customer and Heptagon Group. Each Request shall constitute a separate contract governed by these terms and these terms apply to the exclusion of all other terms or conditions of contract Customer may propose and shall not be varied unless set out in the Request or as agreed in writing and signed by Heptagon Group.
1.1 Heptagon Group grants to Customer a non-exclusive, non-transferable licence to use the Products internally at Customer’s facilities, for the sole purpose of evaluation and testing during the Evaluation Period.
Delivery of Products.
2.1 Heptagon Group shall deliver the Products to Customer as soon as reasonable after the execution of this Agreement. Customer will pay the costs of delivery to it and the cost of return delivery to Heptagon Group.
3.1 The Product will remain on site for the evaluation period, during which time any technical issue must be raised immediately with Heptagon Group.
3.2 After the evaluation period has expired the customer shall de-install the Product and return it to Heptagon Group.
No Reverse Engineering and Other Restrictions.
4.1 Customer agrees that Customer will not attempt and will use its best efforts to prevent Customer’s employees and contractors from attempting, to reverse engineer, reverse compile, disassemble, modify, adapt, translate, create derivative works, rent, lease, loan, distribute or sublicense the Products, in whole or in part, or use any mechanical.
4.2 Electronic or other method to trace, decompile, disassemble or identify the source code of the Software.
Confidential Information; Proprietary Markings.
5.1 In this clause “Confidential Information” means information relating to the business, system and affairs of either party, its representatives or customers (and in the case of Heptagon Group includes the Products) other than any such information that (a) was in the public domain at the time of its provision by the Disclosing Party, (b) became part of the public domain after its provision by the Disclosing Party, other than through breach of this Agreement, and (c) is or came lawfully into the possession of the Receiving Party other than as a result of a disclosure in breach of an obligation of confidence.
5.2 The party receiving Confidential Information (“Receiving Party”) agrees to exercise at least the same degree of care to safeguard the confidentiality of the Confidential Information of the other (“Disclosing Party”) as the Receiving Party would exercise to safeguard the confidentiality of its own Confidential Information but in any event not less than reasonable care.
5.3 Except as required by the Receiving Party for the exercise of its rights under this Agreement the Receiving Party agrees not to (i) disclose the Confidential Information or any portion thereof to any third party; (ii) reproduce the Confidential Information in any form or medium, or (iii) use the Confidential Information for any purpose not specified in this Agreement.
5.4 The Receiving Party warrants that all employees of the Receiving Party having access to the Confidential Information under this Agreement will abide by the obligations set out in this clause 4. Customer agrees not to remove or destroy any copyright, logo, trademark, trade name, proprietary markings, or confidentiality legends placed upon or contained within the Confidential Information. Customer agrees to comply with all legends that appear on or in the Confidential Information (or any component thereof), provided that such compliance would not materially detract from the rights granted to Customer under this Agreement.
6.1 Title to and ownership of (i) the Software, and any improved, updated, modified or additional parts thereof; (ii) the Documentation; and (iii) all copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature (“Intellectual Property Rights”) in and to the Products and in material devised, created or commissioned by Heptagon Group, in supplying the Products, shall at all times remain the property of Heptagon Group or Heptagon Group’s licensors.
6.2 Customer shall not mortgage, pledge, assign or borrow against the Products or part thereof or otherwise create or attempt to create a security interest in the Products or part thereof.
Damages to Products, Insurance.
7.1 Risk in the Products will pass to Client on dispatch to Customer. Title in the Products will remain with Heptagon Group at all times.
7.2 Customer agrees, at Customer’s cost and expense, to be responsible for diligence and care in the use and protection of the products. Customer will be liable to Heptagon Group for any damages for loss of, or damage to, the Products while such Products are in customer’s custody and other direct losses, damages and expenses up to an agreed value of the full list price of the Products. Customer shall notify Heptagon Group promptly in the event that the Products are damaged or otherwise need to be replaced or repaired. Fair wear and tear damage to the products is excluded from this agreement.
7.3 Customer agrees to notify Heptagon Group of any changes made to the default password of the equipment. Should the default password be changed and not notified to Heptagon Group, the Heptagon Group reserves the right to charge to the customer a reasonable handling charge in order to have the equipment password reset.
7.4 Customer agrees to retain and return all original packaging shipped with the equipment. Should packaging not be returned, Heptagon Group reserves the right to charge the customer a handling fee of up to £50.00 reflecting the cost of obtaining replacement packaging.
Limitation of Liability.
8.1 Heptagon Group and Customer each accept liability for death or personal injury resulting from their negligence or breach of this Agreement.
8.2 Subject to clause 10, Heptagon Group shall not be liable to Customer in contract, tort (including negligence) or otherwise for any indirect or direct loss of profits, business or anticipated savings. Customer shall not be liable to Heptagon Group in contract, tort (including negligence) or otherwise for any indirect loss of profits, business or anticipated savings.
Term and termination.
9.1 This Agreement is in effect for the Evaluation Term and may be extended by mutual written agreement.
9.2 Either party may terminate this Agreement at any time, with or without cause, upon notice to the other party. Upon termination or expiration of this Agreement, Customer shall immediately cease use of the Products and Customer shall arrange to return the Products to Heptagon Group premises within five (5) days after such termination or expiration. Upon Heptagon Group’s request, Customer will certify to Heptagon Group that the Products have been returned. If after termination or expiration of this Agreement, Customer wishes to make continued use of the Products the parties shall negotiate a separate Purchase and Licence agreement. Clauses 4, 5, 6, 8, 9 and 10 shall survive termination or expiration of this Agreement.
10.1 The customer agrees to pay, indemnify and hold Heptagon Group harmless for any sales or use tax or export or import fees or duties imposed at any time whatsoever in connection with this transaction.
Intellectual Property Rights Warranty
11.1 represents and warrants that it is the owner of the Products and is entitled to grant the licences and permissions granted to Customer under this Agreement. Heptagon Group shall defend, or at Heptagon Group’s option settle any claim, suit or proceeding brought against Customer or an End User based on any claim that the Products (or any part thereof) infringe upon the Intellectual Property Rights of any third party (“Infringement Claim”).
Sublicensing to Potential End Users
12.1 Customer may permit its potential end user customers (“End Users”) to exercise the rights of Customer hereunder to evaluate and test the Products. Prior to an End User’s exercise of such rights, Customer shall ensure that the End User agrees in writing to comply fully with any and all obligations of this Agreement.
Purchasing the Product.
13.1 The customer undertakes, on accepting the evaluation, that for a period of 6 months, following the evaluation, if the product is chosen, then the purchase of the product will be made only through Heptagon Group. If the product is evaluated, and then purchased from another supplier, the customer then agrees to pay Heptagon Group £250 per day for the whole of the evaluation period.
13.2 After the expiry date of the Evaluation or the termination of this Agreement (whichever is soonest), Heptagon Group reserves the right to invoice the Customer for the product under standard Terms of Supply if the product is not returned with five (5) days following a written request by Heptagon Group.
14.1 Except as permitted under clause 10 (“Sublicensing to Potential End Users”), neither party may assign this Agreement or transfer any of the rights, duties, or obligations arising under this Agreement without the prior written consent of the other provided always that Customer may permit its affiliates to use the Products.
14.2 Except as set forth above, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto.
14.3 This Agreement will be governed by and construed according to the laws of England and Wales, without regard to that body of law controlling conflicts of law. In the event of any dispute or claim arising out of this Agreement, the parties hereby submit to the jurisdiction of the courts of England and Wales.
14.4 No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless executed in writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force.
14.5 Each party agrees that a material breach of this Agreement will cause irreparable harm to the other and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, either party will be entitled to obtain timely injunctive relief or other equitable remedies to protect its rights under this Agreement.