ENTERPRISE LICENSE AGREEMENT
PLEASE READ CAREFULLY BEFORE USING THE MATERIALS: GeoPostcodes SRL IS WILLING TO LICENSE THE MATERIALS TO YOU UPON ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
BY DOWNLOADING OR OTHERWISE USING THE MATERIALS YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU ARE NOT PERMITTED TO USE THE MATERIALS IN ANY MANNER.
YOU HEREBY AGREE, BOTH ON YOUR OWN BEHALF AND AS AN AUTHORIZED REPRESENTATIVE OF ANY ORGANIZATION FOR WHICH YOU ARE USING THE MATERIALS (hereinafter, the “EMPLOYER”), THAT YOU AND THE EMPLOYER WILL USE THE MATERIALS ONLY IN ACCORDANCE WITH AND SUBJECT TO THE FOLLOWING TERMS:
This Enterprise License Agreement and any exhibit (“Exhibit”
)thereto (collectively, this “Agreement”
) is made and entered into effect at the date of payment (the “Effective Date”
) by and between:
- GeoPostcodes SRL, a U.A.E. Limited Liability Company whose principal place of business is located at Avenue Zénobe Gramme 30, 1300 Wavre, Belgium (the "Licensor"); and
- You (the "Licensee"). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Licensee” means your company, and you are binding your company to this Agreement.
WHEREAS, Licensor has developed certain data and related documentation, defined as the Materials below.
WHEREAS, Licensor is willing to license the Materials to Licensee for its use and distribution subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual representations and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
In addition to other terms defined elsewhere in this Agreement, the following terms, when the first letter is capitalized, shall have the meanings set forth in this Section 1 (Definitions). These terms shall apply both to their singular or plural forms, as the context may require. As used herein, “hereunder,” “herein” and similar expressions refer to this Agreement, and “including” means “including without limitation.”
- "Materials" shall mean all or any portion of Licensor's proprietary data, scripts, software, documentation, or related materials supplied by Licensor, regardless of the format or content, as any and all of which are made generally available by Licensor in the marketplace, and licensed by Licensor to Licensee under this Agreement.
- "Derivative Works" shall mean any products, software, services, web applications or methods created using, incorporating or derived from the Materials or from other Derivative Works incorporating the Materials.
- "Affiliate" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with Licensee, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.
- "Sublicensees" shall mean Licensee’s Affiliates and employees that act and execute this Agreement on behalf of Licensee and undertake any or all of Licensee's obligations under the license.
- "Customer" shall mean any customer of Licensee or its Affiliates.
- "Confidential Information" shall mean any trade secret, know-how, method, application, documentation, schematic, procedure, contract, price list, pricing information, knowledge, non-public data, process, marketing, financial information whether disclosed in oral, written, graphic or electronic form, whether either conspicuously marked "confidential", or is known or reasonably should have been known by the party in possession to be confidential.
- "Technical Issues" shall mean any issue regarding the downloading or accessing of the Materials.
2. INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP
Materials supplied under this Agreement are licensed and not sold. Licensor solely owns all Materials, which are protected by applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights. Nothing in this Agreement shall abridge Licensor's rights in the Materials. Any rights not expressly granted herein are reserved exclusively by Licensor.
3. GRANT OF LICENSE
3.1 Permitted Uses
Subject to the terms and conditions in this Agreement, and in consideration of license fees paid by Licensee, and during the License Term as defined in Section 3.4 (License Term), Licensor grants Licensee a limited, non-exclusive and non-transferable right:
- to use, copy, embed, integrate, link, modify, and maintain the Materials for Licensee's internal use;
- to reproduce and distribute the Materials to Sublicensees;
- to incorporate the Materials on a single or multiple websites as long as (i) the main purpose of the website(s) is not the use of the Materials or does not present a conflict of interest with Licensor activities or its websites and (ii) the Materials cannot be accessible in its original format or an unprotected format, or by "web scraping" or any other methods aiming to extract and collect the Materials from the website.
To the extent Licensee chooses to use the Materials, Licensee does so at its own initiative and is responsible for compliance with any applicable laws, including but not limited to local laws of the country or region in which Licensee resides or in which Licensee downloads or uses the Materials.
Licensor reserves the right to improve and/or make changes in its offerings of the Materials and its associated software, datasets, or information at any time.
3.2 Restricted Uses
Licensee may not:
- distribute or resell the Materials to Customers or any third-party;
- produce Derivative Works of the Materials;
- sublicense the Materials to entities or individuals other than Sublicensees defined in Section 1 (Definitions);
- allow access to entities or individuals other than Sublicensees (whether free of charge or in exchange for payment) to files containing data from Licensor in any form whatsoever, in which the Materials is unencrypted, unprotected or accessible via data scraping;
- use the Materials for products, applications or websites whose main purpose would be the use of the Materials or might present a conflict of interest with Licensor's activities or its websites;
- use the Materials for any illegal, unauthorized or otherwise improper purposes, or in any manner which would breach any laws or regulations, or violate the rights of third parties;
- remove or alter any copyright notices, proprietary information notices or restricted rights notices contained in the Materials.
3.3 License Term
The license is granted for a one (1) year period from the date of receipt by Licensor of the first payment (the "License Term"
) and is subject to receipt of payment in full. The License Term will automatically renew for successive one (1) year periods until the Agreement or an Exhibit issued hereunder terminates in accordance with Section 6.2 (Termination for Cause) or Section 6.3 (Termination for Convenience) of this Agreement.
Licensee may order Materials under this Agreement in one or more order forms (each a “Purchase Order”). The terms and conditions of this Agreement will apply to each Purchase Order. In the event of a dispute between the terms and conditions of this Agreement and any Purchase Order, the terms and conditions of this Agreement will control.
5. SUPPORT AND MAINTENANCE
In consideration of the license fees paid by Licensee, Licensor will provide Licensee with the following support and maintenance services free of charge during the License Term:
- Email support: Licensor will provide support, in a reasonable amount of time, to Licensee’s technical questions regarding the Materials via e-mail during normal business hours, Monday through Friday, excluding normal business holidays;
- Technical Issues: Licensor will attempt to correct Technical Issues identified in the Materials within a reasonable period of time;
- Updates: Licensee shall be entitled to regular updates to the Materials.
6. TERM AND TERMINATION
6.1 Agreement Term
The term of this Agreement shall commence on the Effective Date and shall continue until terminated either in accordance with Section 6.2 (Termination for Cause) or Section 6.3 (Termination for Convenience) of this Agreement.
6.2 Termination for Cause
Either party may have the right to terminate this Agreement or an Exhibit issued hereunder in the event that the other party (i) terminates or suspends its business, (ii) becomes subject to bankruptcy or insolvency, (iii) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, (iv) has liquidated, voluntarily or otherwise or (v) commits a material breach or material default in the performance or observance of any of its obligations under this Agreement.
6.3 Termination for Convenience
- Either party may terminate this Agreement for its convenience at each Effective Date anniversary upon sixty (60) calendar days prior written notice to the other party.
- Either party may terminate an Exhibit issued hereunder for its convenience at the date of expiration of each License Term upon sixty (60) calendar days prior written notice to the other party.
7. PAYMENT AND DELIVERY
7.1 License Fees
In consideration of the license granted hereunder, Licensee shall pay to Licensor an annual license fee of as provided on the invoice. The annual license fees are payable in full at the latest the first day of the License Term for the first period (the "Start Date"
) and at the latest at each Start Date anniversary for the successive one year period renewals. Licensor reserves the right to amend the annual fees for the successive one year periods.
The license fees specifically exclude any amount for taxes or duties. If any duty, sales, use, excise, or other tax, penalties or interest, except for taxes based upon Licensor's net income, is, or should ultimately be, assessed against or is required to be collected by Licensor or by any relevant taxing authority in connection with their performance required hereunder, Licensee agrees to pay an amount equal to any and all such charges, except where Licensee is exempt by law and Licensee provides a bonafide exemption certificate to Licensor.
7.2 No Refunds
The fees actually paid by Licensee to Licensor are non-refundable.
All payments by Licensee to Licensor shall be made in U.S. dollars via wire/electronic transfer of immediately available funds to an account designated by Licensor.
7.4 Account Registration
Licensee may need to register for a GeoPostcodes account in order to place orders or access or receive the Materials. Any registration information that Licensee provides to Licensor must be accurate, current and complete. Licensee must also update information so that Licensor may send notices, statements and other information to Licensee by email or through your account. Licensee is responsible for all actions taken through its accounts.
Materials will be delivered in electronic format through Licensee's account upon payment receipt by the Licensor.
8. DISCLAIMERS, INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 Disclaimer of Warranties
Licensor disclaims all warranties of any kind, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. The Materials are provided "AS IS" and Licensee assumes all risks of use.
Licensor agrees to defend, indemnify and hold Licensee harmless, and at Licensor's option, settle any action or proceeding specifically based upon a third party's claim of patent, copyright or trademark infringement asserted against Licensee by such third party, provided (i) the Materials are used as provided by Licensor, (ii) Licensor is given prompt, written notice of any such claim, (iii) Licensor is given the right to control and direct the investigation, defense and settlement of each such claim, and (iv) Licensee reasonably cooperates with Licensor in connection with the foregoing.
Should the Materials, become, or in Licensor's opinion are likely to become, the subject of a claim of infringement, Licensee shall permit Licensor, at Licensor's option and expense, either (i) to procure for the Licensee the right to continue using the Materials, (ii) to replace or modify the same so that they become non-infringing, or (iii) to grant the Licensee a refund of the unused portion of the license fees received by Licensor from Licensee.
8.3 Limitation of Liability
8.3.1 WAIVER OF CONSEQUENTIAL DAMAGES.
TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER THE LICENSOR NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.3.2 LIABILITY CAP.
IN NO EVENT, THE LICENSOR'S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE TOTAL AMOUNTS OF FEES ACTUALLY PAID BY THE LICENSEE TO THE LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE ACCRUAL OF THE CLAIM GIVING RISE TO SUCH LIABILITY AND IN RESPECT OF THIS AGREEMENT.
Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use commercially reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
Notwithstanding Section 9.1 (Non-disclosure), neither party shall have liability to the other party with regard to any Confidential Information of the other party which the receiving party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; (vi) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement; or (vii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
9.3 Return of Confidential Information
Upon the other party’s request following expiration or termination of this Agreement, each party shall return all Confidential Information received from the other party.
The parties each acknowledge that any breach of the restrictions contained in this Section 9 (Confidentiality) is a breach of this Agreement which may cause irreparable harm to the non-breaching party. Any such breach shall entitle the non-breaching party to injunctive relief in addition to all other legal and equitable remedies.
10. DISPUTE RESOLUTION AND GOVERNING LAW
10.1. Dispute Resolution; Arbitration
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of sixty (60) days, the parties shall seek to mutually appoint an arbitrator to treat any unresolved controversy or claim arising out of or relating to this Agreement. Arbitration will take place in a city mutually agreed between the parties. If the parties are unable to agree to one city, then the arbitration shall proceed in Brussels (Belgium). Except as provided in this Agreement, all parties must commence and pursue arbitration to resolve disputes before commencing legal action. Except as provided in this Agreement, if either party commences action in any court prior to an arbitrator's final decision on the controversy or claim, then the party so commencing the action will be responsible for all expenses incurred by the parties in the arbitration and the court proceedings, whether or not they are the prevailing party. All negotiations and arbitration proceedings pursuant to this Section 10.1 (Dispute Resolution; Arbitration) will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
10.2. Governing Law; Jurisdiction
This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation (including any non-contractual disputes or claims), shall be governed by and construed exclusively in accordance with England and Wales law. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 10.1 (Dispute Resolution; Arbitration) shall be adjudicated only by a court of competent jurisdiction in England and Wales, United Kingdom, and thus the Parties consent to the exclusive jurisdiction and venue in a court of competent jurisdiction in England and Wales, United Kingdom.
11. GENERAL PROVISIONS
The parties mutually agree that if any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable.
The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
11.2 Successor and Assigns
The Licensee shall not assign or transfer its rights or delegate its obligations under this Agreement without the Licensor's prior written consent. Any attempt to do so without prior written consent shall be void.
11.3 Equitable Relief
The Licensee agrees that a breach of this Agreement may cause irreparable harm and that, in the event of such breach, in addition to any and all remedies at law, the Licensor shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or undertaking or proving injury as a condition for relief.
11.4 Survival and Severance
The paragraph 3.1.a, the Sections 8.3 (Limitation of Liability), 9 (Confidentiality), 11.5 (Entire Agreement) and this Section 11.4 (Survival and Severance) shall continue in full force and effect following the termination or expiration of this Agreement for any reason. If any provision of this Agreement or any part thereof is determined to void or unenforceable by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject or by virtue of any other reason whatsoever, it will be void or unenforceable to that extent only and the validity and enforceability of any of the other provisions or the remainder of any such provision will not be affected.
11.5 Entire Agreement
This Agreement, including its Exhibits, constitutes the sole and entire agreement of the parties as to the Materials provided hereunder. Additional or different terms included with an order or other document shall not be binding upon Licensor. The terms and conditions of this Agreement may not be modified or amended except in writing which states that it is such a modification or amendment, and is signed by an authorized representative of each party hereto. This Agreement shall have no effect on interpretation, application, or the rights and obligations associated with any other agreements between Licensee and Licensor, whether agreed to before or after the Effective Date.
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