Terms of Service

Temporall Workbench End User License Agreement

This Temporall Workbench End User License Agreement (“Agreement”) sets forth the terms and conditions under which you (“Customer”) may purchase, licence and use the Product (the “Agreement”) provided by Temporall Ltd, a company incorporated and registered in England and Wales with company number 10633878 and whose registered office is at 2nd Floor 167-169 Great Portland Street, London, United Kingdom, W1W 5PF (“Temporall”).

1. Licences

1.1

From Temporall to Customer. In consideration of payment by Customer of the agreed licence fees and Customer agreeing to abide by the terms of this Agreement, Temporall grants to Customer a non-sublicensable, non-transferable, non-exclusive, terminable licence, during the Licence Term to use the Product and Documentation on the terms of this Agreement:

1.2

From Customer to Temporall. When Customer submits data via the Services that include Customer Content, Temporall requires a licence to that Customer Content so it can process the data and return results to Customer. Therefore, by submitting Customer Content to Temporall through the Services, Customer grants to Temporall an irrevocable, royalty-free, and non-exclusive licence, during the Licence Term, to use, copy, display, perform, reproduce, adapt, modify, translate, and distribute this Customer Content solely to enable Temporall to provide the Services to Customer.

2. Restrictions

2.1

Licence Restrictions. Customer may only use the Product and the Services pursuant to the Agreement, and the Acceptable Use Policy, for its internal business purposes only by the number of concurrent users agreed. Customer may only use the Product in the Licensed Configuration specified in the applicable Ordering Document. Except as expressly set out in this Agreement or as permitted by any local law, Customer undertakes:

2.1.1.

not to copy the Product or Documentation except where such copying is incidental to normal use of the Product, or where it is necessary for the purpose of back-up or operational security;

2.1.2.

not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Product or Documentation;

2.1.3.

not to make alterations to, or modifications of, the whole or any part of the Product, nor permit the Product or any part of it to be combined with, or become incorporated in, any other programs;

2.1.4.

not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Product nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Product with another software program (and provided that the information obtained by Customer during such activities: (i) is used only for the purpose of achieving inter-operability of the Product with another software program; (ii) is not unnecessarily disclosed or communicated without Temporall’s prior written consent to any third party; and (iii) is not used to create any software which is substantially similar to the Product or Service);

2.1.5.

to keep all copies of the Product secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Product;

2.1.6.

to supervise and control use of the Product and ensure that the Product is used by any permitted employees in accordance with the terms of this Agreement;

2.1.7.

to include Temporall’s copyright and other proprietary notices on the Product (and any copies made);

2.1.8.

not to provide or otherwise make available the Product in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from Temporall; and

2.1.9.

to comply with all applicable technology control or export laws and regulations.

2.2

Temporall only supplies the Products and Documentation for internal use by Customer’s business, and Customer agrees not to use the Product or Documentation for any re-sale purposes.

2.3

Third Party Components. Any third-party component embedded, included or provided by Temporall for use with the Products may only be used in conjunction with the Products, and this use is subject to this Agreement and the Documentation. However, to the extent Products include components governed by open source licences with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licences. To the extent Products include components covered by open source license requiring the provision of corresponding source code for those components, Temporall hereby offers the provision of such source code consistent with those licences.

3. Ownership

3.1

Generally. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s (or its licensors) content or any of the other’s (or its licensors) Intellectual Property Rights. Intellectual Property Rights in and to the content accessed through the Product and Services are the property of the applicable content owner and are protected by applicable laws. For the avoidance of doubt, Temporall (or its licensors, as applicable) own the Content.

3.2

Brand Features. Any goodwill arising from the use of a party’s Brand Features will inure to the benefit of the party holding rights in those Brand Features. Each party agrees not to: (a) challenge or assist others to challenge the other party’s Brand Features or registration thereof (except to protect such party’s rights with respect to its own Brand Features) attempt to register any Brand Features that are confusingly similar to those of the other party.

4. Confidentiality

4.1

Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to Affiliates, employees, officers, directors, professional advisers and agents (“Representatives”) who need to know it in connection with that party performing this Agreement and who have agreed in writing to keep it confidential. Each party (and any Representatives to whom it has disclosed Confidential Information) may use Confidential Information only to exercise the rights and fulfil obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Representatives in breach of this Section. This Section 4.1 shall survive termination of this Agreement for any reason.

4.2

Exceptions. Confidential Information does not include information that: (a) the recipient already lawfully knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient (which independent development can be demonstrated by written evidence); or (d) was rightfully given to the recipient by another party.

4.3

Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

4.4

Return or Destruction. To the extent permitted by law, upon the request by either party, the other party shall immediately deliver to the requesting party all information, products, materials, books, manuals, lists, correspondence and other documents relating to the Confidential Information, together with all copies thereof, and in the event that either party request Confidential Information be destroyed, the other party shall do so and confirm or provide proof of such destruction.

4.5

Publicity. Customer agrees that Temporall may use Customer’s trademarks, branding and logos as necessary for the provision of the Service. The parties further agree that Temporall shall have the right to display a copy of Customer’s trademarks and/or its main trading logo on its website for the purposes of promoting and advertising the fact that it has entered into a licence agreement for Customer to use its Service subject to the approval of each use by a Director of Customer from time to time.

5. Term and Termination

5.1

Term. Subject to Customer’s payment of Fees, the term for the licence granted in this Agreement for the Product, will begin on the Activation Date and will continue for License Term unless terminated earlier as set forth below.

5.2

Termination for Breach. Temporall may terminate this Agreement in whole or in part immediately by giving written notice to Customer at any time if: (i) Customer is in material or persistent breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) Customer enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business, or any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.

5.3

Effect of Termination or Expiration.

5.3.1.

If the Agreement expires or is terminated, then: (i) the Licence Term, and all other rights and licences granted by one party to the other, or any services provided by Temporall to Customer, will cease immediately; (ii) Customer must immediately cease all activities authorised by this Agreement; (iii) upon request, each party will promptly return all Confidential Information of the other party; and (iv) Customer must delete any data it received from Temporall as part of receiving the Services and must immediately and permanently delete or remove the Software from all computer equipment in its possession, and immediately destroy or return to Temporall (at Temporall’s option) all copies of the Software and Documentation then in its possession, custody or control and, in the case of destruction, certify to Temporall that it has done so.

5.3.2.

Expiration of the Licence Term. The Product will cease functioning upon the expiration of the Licence Term.

6. Representations and Warranties

6.1

Authority. Each party represents and warrants that it has the right, power and authority necessary to enter into this Agreement.

7. Intellectual Property Rights

7.1

All Intellectual Property Rights belonging to a party, subcontractor or third party prior to the Effective Date, or created independently and not in relation to this Agreement or otherwise than in the provision of the Products and/or the Services (“Pre-Existing IPR”) will remain vested in that party, subcontractor or third party (as applicable) and shall not be assigned hereunder.

7.2

Customer grants to Temporall a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Customer Materials for the purpose of providing the Products and Services to Customer.

7.3

Temporall licenses use of the Product and Documentation to Customer on the basis of this Agreement. Temporall does not sell the Product or Documentation to Customer. Temporall remains the owners of the Product, Services and Documentation at all times. Customer acknowledges that it has no right to have access to the Product in source code form. Temporall hereby grants Customer a non-exclusive, worldwide, royalty-free, non-transferable, non-sublicensable, paid up right and licence to use, execute and display Temporall’s Pre-Existing IPR for the purpose of receiving and using the Products solely to the extent necessary for its general business purposes (subject at all times to the terms of any third party, open source or other licensing terms contained in any Software delivered to Customer).

8. Disclaimer. Except as expressly provided for herein, this Agreement sets out the full extent of Temporall’s obligations and liabilities in respect of the supply of the Product, Services and Documentation and, to the maximum extent permitted by applicable law, no other warranties, representations, conditions or terms of any kind, whether express, implied, statutory or otherwise are included, including without limitation warranties of satisfactory quality, fitness for a particular purpose, non-infringement or conformance with description apply to any Services, Products or to any other goods or services supplied by Temporall or its Affiliates, licensors and its or their suppliers under this Agreement. Temporall, its Affiliates, licensors and its or their suppliers, do not warrant that the operation of the Software will be error-free or uninterrupted, or that any particular result will be obtained by use of the Software or that the Software will meet Customer’s requirements. The Product is provided ‘as is’ and is not designed, manufactured, or intended for High Risk Activities.

9. Limitation of Liability

9.1

Customer acknowledges that the Product has not been developed to meet its individual requirements, including any particular cybersecurity requirements it might be subject to under law or otherwise, and that it is therefore Customer’s responsibility to ensure that the facilities and functions of the Product as described in the Documentation meet its requirements.

9.2

Limitation on Indirect Liability. To the fullest extent permitted by law and subject to Section 9.3, Temporall will not under any circumstances be liable under this Agreement (whether in contract, tort or otherwise) for lost revenues or profits, loss of business or anticipated savings, depletion of goodwill, loss of use, loss or corruption of data or information, or any indirect, special, incidental, consequential or pure economic losses, costs, damages, charges or expenses suffered or incurred by any party (whether or not such losses were within the contemplation of the parties at the date of this Agreement).

9.3

Exceptions to Limitations. Nothing in this Agreement shall exclude or limit either party’s liability for: (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded or limited by English law.

9.4

Other than the losses set out in Section 9.2 (for which Temporall is not liable), to the fullest extent permitted by law, Temporall’s maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the licence fee paid by Customer for the Product during the twelve months prior to the event giving rise to liability.

10. Indemnification.

10.1

By Temporall. Temporall will defend and indemnify, or at its option settle, Customer from and against all liabilities, damages, and costs, arising out of a third party claim that the Product used in accordance with the Documentation and this Agreement infringes any Intellectual Property Rights of that third party.

10.2

Exceptions. The indemnity obligations in Section 10.1 do not apply if the third party claim is caused by, or results from: (a) Customer’s combination or use of the Product with software, services, or products developed by Customer or third parties, if the claim would have been avoided by the non-combined or independent use of the Product; (b) modification of the Product, Services, or Content, by anyone other than Temporall if the third party claim would have been avoided by use of the unmodified item; (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (d) Customer’s use of the Product, Services or Content in a manner not in accordance with this Agreement or the Documentation; or (e) use of other than Temporall’s most current release of the Product if the third party claim would have been avoided by use of the most current release or revision.

10.3

Customer will defend and indemnify, or at its option settle, Temporall from and against all liability’s damages, and costs arising out of a third-party claim made against Temporall for infringement of third party rights (including third party Intellectual Property Rights) to the extent caused by conduct by Customer or arising in connection with Temporall’s use of the Customer Materials or Customer Content.

10.4

Possible Infringement.

10.4.1

Repair, Replace, or Modify. If Temporall reasonably believes the Product, Content or Services infringe a third party’s Intellectual Property Rights, then Temporall will use best endeavours to: (a) procure for Customer the right to continue to use the Product; (b) replace the Product; or (c) modify the Product to avoid the alleged infringement.

10.5

General. The party seeking indemnification must promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party shall be granted full control and authority over the defence and settlement of the claim, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, which will not be unreasonably withheld or delayed; and (b) the party seeking indemnification may join in the defence of the claim with its own legal counsel at its own expense. The foregoing states Temporall’s entire liability and Customer’s sole and exclusive remedy for Intellectual Property Rights infringement.

11. Acceptable Use Policy.

11.1

Customer agrees not to, and not to allow third parties to use the Product or Services:

11.1.1

to violate, or encourage the violation of, the legal rights of others (for example, this may include infringing or misappropriate the Intellectual Property Rights);

11.1.2

to engage in, promote or encourage illegal activity;

11.1.3

for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);

11.1.4

to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;

11.1.5

to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorised resellers, or other authorised users;

11.1.6

to disable, interfere with or circumvent any aspect of the Product or Services;

11.1.7

to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”); or

11.1.8

to use the Product or Services, or any interfaces provided with the Product or Services, to access any other Temporall product or service in a manner that violates the terms of service of such other Temporall product or service.

12. Communications between the Parties.

12.1.

Temporall may update the terms of this Agreement at any time on notice to Customer in accordance with this Section 12. Customer’s continued use of the Product and Documentation following the deemed receipt and service of the notice shall constitute Customer’s acceptance to the terms of this Agreement, as varied. If Customer does not wish to accept the terms of the Agreement (as varied) it must immediately stop using and accessing the Product and Documentation on the deemed receipt and service of the notice.

12.2.

If Temporall has to contact Customer, it will do so by email or by pre-paid post to the address Customer provided in accordance with the Ordering Document. Any notice: (a) given by Temporall to Customer will be deemed received and properly served 24 hours after it is first posted on Temporall’s website, 24 hours after an email is sent, or three days after the date of posting of any letter; and (b) given by Customer to Temporall will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.

12.3.

In proving the service of any notice, it will be sufficient to prove, in the case of posting on Temporall’s website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.

13. Use of Personal Information.

13.1.

Under data protection legislation, Temporall is required to provide Customer with certain information about who we are, how we process the personal data of those individuals who use the Product and the Documentation and for what purposes, and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in https://temporall.com/privacy-policy/ and https://temporall.com/platform-policy/ and it is important that you read that information.

14. Miscellaneous.

14.1.

Assignment. Temporall may transfer its rights and obligations under this Agreement to another organisation, but this will not affect Customer’s rights or Temporall’s obligations under this Agreement. Customer may only transfer its rights or its obligations under this Agreement to another person if Temporall agrees in writing.

14.2.

Force Majeure. Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including without limitation failure of public or private telecommunications networks (“Force Majeure Event”). If a Force Majeure Event takes place that affects the performance of Temporall’s obligations under this Agreement, its obligations under this Agreement will be suspended and the time for performance of Temporall’s obligations will be extended for the duration of the Force Majeuere Event, and Temporall will use its reasonable endeavours to find a solution by which its obligations under this Agreement may be performed despite the Force Majeuere Event.

14.3.

No Waiver. Failure or delay in exercising any right or remedy under this Agreement will not constitute a waiver of such (or any other) right or remedy.

14.4.

Severability. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement (as found by any court of competent authority) shall not affect the continuation in force of the remainder of the term (if any) and this Agreement.

14.5.

Rights of Third Parties. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.

14.6.

Governing Law. This Agreement, its subject matter and formation (and any non-contractual disputes or claims) is governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning this Agreement save that either party may apply to any court for an injunction or other relief to protect its Intellectual Property Rights. If this Agreement is translated into any other language, if there is conflict the English text will take precedence.

14.7.

Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.

14.8.

Interpretation. The words “include” and “including” will not limit the generality of any words preceding them.

14.9.

Entire Agreement. This Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties (whether written or oral) relating to its subject matter. In entering into this Agreement Customer agrees that it has not relied on any statement, representation, assurance or warranty not expressly set out in this Agreement. Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

Definitions.

“Acceptable Use Policy” means the terms regarding acceptable and permitted use of the Product and Services, as set out in Section 11.

“Activation Date” means the date upon which Temporall provides Customer access to the Product.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with such party.

“Billing Units” means the number of End Users permitted in the Ordering Document. Billing Units will be determined by the nature of the Services ordered by Customer.

“Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinctive brand features.

“Confidential Information” means information disclosed by (or on behalf of) a party to the other party under this Agreement that is marked as confidential or would reasonably be considered to be confidential or proprietary under the circumstances.

“Content” means any content provided through the Services whether created by Temporall or its third-party licensors.

“Control” means the possession by any person(s) directly or indirectly of the power to direct or cause the direction of another person.

“Customer” means the company, corporate or other legal entity accepting this Agreement.

“Customer Content” means any content that Customer provides in the Service including data, images, video, or software. Customer Content does not include the Content.

“Customer Materials” all documents, information, items and materials in any form, whether owned by Customer or a third party, which are provided by Customer, or on Customer’s behalf, to Temporall in connection with the Products and Services.

“Documentation” means the Temporall proprietary documentation in the form generally made available by Temporall to its customers for use with the Software.

“End Users” mean the individual human end users who use the Product.

“Effective Date” means the date upon which the Customer confirms its acceptance to this Agreement, and upon which the Agreement becomes legally binding between the parties having been executed by a duly authorised person or persons on behalf of each Party.

“Fees” means the applicable fees for Products set forth in an Ordering Document.

“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage.

“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all 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.

“Licensed Configuration” means the Billing Unit metrics as specified in an Ordering Document.

“Licence Term” means the period of time during which Customer is authorised to use the Services, as defined in the Ordering Document.

“Ordering Document” means either an order form signed by or otherwise agreed by Customer to provide the Product to Customer, subject to this Agreement.

“Pre-Existing IPR” has the meaning given to that term in Section 7.1.

“Product” means the Temporall Workbench Software and Documentation.

“Services” means the Temporall Workbench, described here http://www.temporall.com, or at other such URL provided by Temporall periodically, and Customer’s use of the Software to display the Content and the Customer Content,

“Software” means the Temporall proprietary Workbench programme provided by Temporall to Customer pursuant to an Ordering Document.

“Workbench” refers to Temporall’s Enterprise software platform.