iServer Terms 

(End User Licence Agreement)

This licence agreement (“Agreement”) is a binding agreement between Seattle Software Limited, trading as Orbus Software (“Licensor”) and you (“Licensee”) for your use of the iServer software and associated services.

1. Definitions and Interpretation. For purposes of this Agreement, the following terms have the following meanings:

“Annual Subscription Fee” means the subscription and support fees, excluding all taxes thereon, paid by Licensee for the support services as set forth in the Order Form signed at or around the time of this Agreement (as applicable).

“Documentation” shall mean the documentation that is supplied or made accessible by the Licensor with the Software at any point during the term of this Agreement including but not limited to installation documentation and End User documentation which is hosted online and made available to the Licensee via the Ecosystem.

“Data” means any information or material stored within the Software by End Users;

“Ecosystem” shall mean the collaboration platform on which the Licensee customer account information, training resources and other supporting Documentation can be found.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“End Users” shall mean the Licensee’s users of the Software including both Registered Users and non-registered users, as set forth in the Order Form.

“Licensee” has the meaning set forth in the preamble.

“Licence Fees” means the licence fees, excluding all taxes thereon, paid by Licensee for the licence granted under this Agreement as set forth in the Order Form.

“Licensor” has the meaning set forth in the preamble.

“Registered User” shall mean those End Users registered with the Ecosystem.

“Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the licence for the Software granted under this Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Software” means the software programs in object code form only for which Licensee is purchasing a licence, but excluding customisations specifically requested by the Licensee, as expressly set forth in the Order Form.

“Third Party” means any Person other than Licensee or Licensor.

2. Licence Grant and Scope.

Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement and the Order Form and in consideration of the Licence Fees, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited licence during the Term to use, solely by and through its End Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This licence grants Licensee the right, exercisable solely by and through Licensee’s End Users, to:

(a)  install in accordance with the Documentation one (1) copy of the Software on each of the designated computers set forth on the Order Form owned or leased, and controlled by, Licensee. Unless expressly stated in the Order Form, each such computer shall be for a single End User. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Licensee:

(i)  will be the exclusive property of the Licensor;

(ii)  will be subject to the terms and conditions of this Agreement; and

(iii)  must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

(b)  Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.

(c)  Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licenced use of the Software in accordance herewith. All copies of the Documentation made by Licensee:

(i)  will be the exclusive property of Licensor;

(ii)  will be subject to the terms and conditions of this Agreement; and

(iii)  must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

3. Third-Party Materials.

The Software includes software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licences”). A list of which (including the internet address where a copy of each licence governing the use of such open-source component or third-party material may be obtained) is available upon request from Licensee. Licensee is bound by and shall comply with all Third-Party Licences. Any breach by Licensee or any of its End Users of any Third-Party Licence is also a breach of this Agreement.

4. Use Restrictions.

Licensee shall not, and shall require its End Users not to, directly or indirectly:

(a)  use (including make any copies of) the Software or Documentation beyond the scope of the licence granted under Section 2;

(b)  except as may be permitted by Section 2 and strictly in compliance with its terms, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;

(c)  modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

(d)  combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

(e)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

(f)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

(g)  except as expressly set forth in Section 2, copy the Software or Documentation, in whole or in part;

(h)  rent, lease, lend, sell, sublicence, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

(i)  use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:

(A)  power generation systems;

(B)  aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;

(C)  safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and

(D)  military or aerospace applications, weapons systems, or environments;

(j)  use the Software or Documentation in violation of any law, regulation, or rule;

(k) use, transfer or reassign the Software, Services, Documentation or any technical information relating to the Software, Services or Documentation to, or make the same accessible from, any country, territory or person in any manner or for any purpose that risks violation of legislation and regulatory requirements which apply to the export, re-export, transfer, release or shipment of goods, technology or software (“Export Law”) (including, the EU Dual Use Regulation (EC) No 428/2009; the UK Export Control Order 2008; the U.S. International Traffic in Arms Regulations; and the U.S. Export Administration Regulations);

(l) use, transfer, reassign or make available the Software, Services, Documentation or any technical information relating to the Software, Services or Documentation to any person, country or territory in any manner or for any purpose that risks violation of legislation and regulatory requirements related to economic or financial sanctions (“Sanctions Law”) (including those implemented, administered and enforced by the UK Office of Financial Sanctions Implementation, the US Office of Foreign Assets Control, the United Nations and the Council of the European Union); or

(m)  use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

5. Responsibility for Use of Software.

Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its End Users or by any other Person to whom Licensee or an End User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

6. Support and Consultancy Days.

(a)  Subject to Section 6 (f) and in consideration of the Annual Subscription Fee, the licence granted hereunder entitles Licensee to the software support services following the date set forth on the Order Form (executed on or around the same date of this Agreement) for one (1) year and thereafter, solely if Licensee purchases additional support services.

Such support services shall be provided on the terms and conditions set forth at https://bit.ly/3rf5LvQ

 (b) Where Licensee purchases consultancy days together with the Licence and support services as set forth in the Order Form, the consultancy days allocated by Licensor to the software deployment and installation at the location designated by Licensee (“Deployment”) will expire on the day the Deployment has been completed, regardless of whether the consultancy days have been utilised by Licensee. For the avoidance of doubt, Deployment can be either on-premise in the Licensee`s server room or data centre or sit in-cloud at the data centre of the Licensee`s cloud service provider, as agreed between the Licensor and Licensee and set forth in the Order Form.

Any remaining consultancy days not related to the Deployment as set forth in the Order Form will expire six (6) months after purchase, regardless of whether the consultancy days have been utilised by Licensee.

(c) Where Licensee purchases consultancy days in addition to those referred to in Section 6 (b) above, payment must be received upfront and within thirty (30) days of the date of invoice as set forth in the Order Form, unless otherwise agreed by Licensor. Notwithstanding the foregoing, the consultancy days will expire within six (6) months of purchase, regardless of whether consultancy days have been utilised.

(d) Upon termination of the Licence, the Licensee will not be entitled to utilise remaining consultancy days (as applicable). The Licensor will be under no obligation to refund any monies paid by the Licensee for consultancy days not used. 

(e)  Support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available on payment of the Annual Subscription Fee to all licensees of the Software. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

(f)  Licensor reserves the right to condition the provision of support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide support services, including Updates:

(i)  for any but the most current or immediately preceding version or release of the Software;

(ii)  for any copy of Software for which all previously issued Updates have not been installed;

(iii)  if Licensee is in breach under this Agreement; or

(iv)  for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Licensor in writing.

7. Collection and Use of Data.

(a)  Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store Data regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:

(i)  the provision of support services; and

(ii)  security measures included in the Software.

(b)  Licensee agrees that the Licensor may use such Data for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

(i)  improving the performance of the Software or developing Updates; and

(ii)  verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

(c) Subject to the remaining provisions of this Section 7, the Licensor shall not be liable under or in connection with this Agreement or in negligence in the event of any loss or damage to Data caused by the Licensor. Without limitation to the foregoing, the Licensor shall not be liable for any loss, destruction, alteration or disclosure of Data caused by any third party not under its direct control.

(d) The Licensee and the Licensor intend that the Licensee is the data controller and the Licensor is the data processor in respect of any Personal Data. In the event that a party considers that its status as a data controller or a data processor has changed, it shall promptly notify the other party and provide details of the grounds upon which such notification is made. The Parties shall then meet, discuss and mutually agree any further actions to be conducted by one or both Parties arising from such notification.

(e) The Licensor shall:

(i) process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of the management of the Licensor’s licences and supply of the support services and in accordance with the Licensee’s lawful written instructions from time to time;

(ii) taking into account the nature of the support services, assist the Licensee by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Licensee’s obligation to respond to requests where a data subject exercises its rights under Data Protection Legislation;

(iii) keep a record of any processing of the Personal Data carried out in the course of the maintenance and support services and of its compliance with its obligations set out in this Section 7 (“the Records”);

(iv) without limitation to any other provision of this Agreement, comply with its obligations as a data processor under Data Protection Legislation; and

(v) having regard to the state of technological development and the cost of implementing any measures, take appropriate technical and organisational measures to ensure a level of security appropriate to the risk including as appropriate:

• the pseudonymisation and encryption of the Personal Data;
• the ability to ensure the on-going confidentiality, integrity, availability and resilience of the Ecosystem;
• the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and
• a process of regularly testing, assessing, and evaluating the effectiveness of the technical and organisational measures referred to in this Section.

(f) If the Licensor receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party's compliance with Data Protection Legislation, it shall promptly notify the Licensee and it shall provide the Licensee with reasonable co-operation and assistance in relation to any such complaint, notice or communication at the Licensee’s cost, unless such complaint, notice or communication directly relates to the Licensor’s breach of its obligations in this Agreement, in which case such co-operation and assistance shall be at the Licensor’s cost.

(g) The Licensor shall provide the Licensee with reasonable co-operation and assistance in relation to the Licensee’s obligations under Data Protection Legislation, taking into account the nature of the Services and the information available to the Licensor including:

(i) any request made by a data subject to have access to the Personal Data relating to that person;

(ii) the Licensee’s obligations to report a security breach to data protection regulators and data subjects and

(iii) in the Licensee’s dealings with data protection regulators; and

(iv) providing the Licensee and data protection regulators with all information and assistance necessary to demonstrate that the Services comply with Data Protection Legislation.

(h) The cost of such co-operation and assistance referred to in Section 7 shall be at the Licensee’s sole cost unless such co-operation and assistance directly relates to the Licensor’s breach of its obligations in this Agreement in which case such co-operation and assistance shall be at the Licensor’s cost.

(i) If the Licensor becomes aware of any unauthorised or unlawful processing of any Personal Data or that any Personal Data is lost or destroyed or has become damaged, corrupted or unusable the Licensor shall, without undue delay of becoming aware of any matter described in this Section notify the Licensee.

(j) Where necessary to perform the Services or otherwise give effect to this Agreement, personal data forming part of the Data may be transferred to the Licensor’s Corporate Group or third parties in accordance with the appropriate data protection principles.

(k) The Licensee hereby authorises the Licensor to appoint a third party to process the Personal Data (a “Sub-processor”). Licensor’s disclosure of such Personal Data shall be on terms substantially equivalent to the terms set out in this Section 7 or otherwise governed by contractual clauses ensuring an adequate level of protection of the Personal Data whilst it is being processed by these Sub-processors. The Licensor and Sub-processor’s may access Personal Data from outside the European Economic Area (subject to adequate contract clauses or a finding of adequacy by the European Commission).

(l) The Licensor shall keep the Records at its normal place of business. The Licensor shall, to the extent it is required to under applicable law, and solely to the extent the same cannot be restricted, permit the Licensee, its third-party representatives or a data protection regulator or its third party representatives, once in each calendar year during the term (or as otherwise required by law) and on reasonable notice during Licensor’s business hours, to gain access to inspect and take copies of the Records for the purpose of auditing the Licensor’s compliance with its obligations under this Agreement. The Licensor shall give reasonable assistance to the conduct of such audits during the term of this Agreement.

(m) The Licensee shall comply with its obligations as a data controller under Data Protection Legislation.

(n) On any termination of this Agreement for any reason the Licensor shall as soon as reasonably practicable return or destroy (as directed in writing by the Licensee) all Data.

(o) Defined terms used in this Section 7 shall bear the same meaning as those terms are defined in Data Protection Legislation unless expressly defined in this Agreement.

8. Intellectual Property Rights.

Licensee acknowledges and agrees that the Software and Documentation are provided under licence, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserve and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.

9. Term and Termination.

(a)  This Agreement and the licence granted hereunder shall remain in effect for the term set forth on the Order Form (the “Term”).

(b)  Upon expiration or earlier termination of this Agreement, the licence granted hereunder shall terminate, and Licensee shall cease to use all copies of the Software and Documentation that were accessible during the term of this Agreement.

10. Limited Warranties.

(a)  Solely with respect to Software for which Licensor receives a Licence Fee, Licensor warrants that:

(i)  any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and

(ii)  the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation and this Agreement, will substantially perform in accordance therewith,

the foregoing warranties do not apply, and Licensor strictly disclaims all warranties, with respect to any third-party materials.

(b)  The warranties set forth in Section 11(a) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any End User, or any other Person provided access to the Software by Licensee or any End User, whether or not in violation of this Agreement:

(i)  installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Licensor in writing;

 (ii)  modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or

(iii)  misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.

(c)  If, during the Term of this Agreement, any Software covered by the warranty set forth in this Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 11(b), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either:

(i) replace any damaged or defective media on which the Licensor supplied the Software;

(ii) amend, supplement or replace any incomplete or inaccurate Documentation; or

(iii)  repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure.

(d) If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 11(c) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 11(a).

11. Limitation of Liability.

To the fullest extent permitted under applicable law:

(a)  Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13 (a) is void. The Licensor may sub-contract or assign any part of its obligations under this Agreement provided that in respect of any such subcontracting, the Licensor continues to be responsible to the Licensee for such sub-contracted obligations in accordance with the terms of this Agreement, and in respect of any such assignment, the Licensor gives notice of such assignment in writing to the Licensee. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.