End User Licence Agreement

Welcome to Ellexus Breeze (the “Service”), a service of Ellexus Ltd, registered office 198 High Street, Tonbridge, Kent TN91BE, UK (“Ellexus”, “we”, or “us”). Please read these Terms of Service carefully, as they govern how you use the service. This end-user licence agreement (EULA) is a legal agreement between the entity you represent (“You”) and Ellexus. By using this service, you acknowledge that you have read, understand and agree to be bound by these terms of service.

We license use of the Software, Services and Documents to you on the basis of this EULA and subject to any rules or policies applied from time to time by AWS (“AWS Rules”) in relation to payment for and use of the Software. We do not sell the Software or Documents to you. We (or our licensors, as appropriate) remain the owners of the Software and Documents at all times.

Ellexus reserves the right to update and change the Terms of Service at any time (in accordance with the rules and policies applied from time to time by AWS). Your continued use of the Software and/or the Ancillary Services will be subject to any such revised terms.

1. Definitions

1.1. “Software” means the software program(s) listed in the AWS Marketplace listing, as well as Updates.

1.2. “Documentation” means any instructions or reference materials related to the Software provided to Licensee.

1.3. “Updates” means maintenance releases, additions, and modifications of the Software incorporating such additions and modifications which are made available to Licensee as part of maintenance services.

1.4 “Confidential Information means(i) any information shared between the two parties, or their respective subsidiaries as applicable, relating to the subject matter of this Agreement including all hardcopy documents, electronic documents and information given orally, whether or not it is marked or stated to be confidential; (ii)the terms and conditions of this Agreement; (iii) the Software and Documentation; and (iv) any information communicated by the Licensee to Ellexus as part of support of the Software.

1.5 “Maintenance” and “Support” means all maintenance and support services provided by Ellexus which are detailed in the Order Schedule.

1.6 “Intellectual Property Rights” means Ellexus’ full ownership of the contents of (i) the Software (ii) the Documentation and (iii) any modifications, developments, updates and enhancements made to the Software and/or Documentation by Ellexus.

2. Licences

2.1 Ellexus hereby grants Licensee a non-transferable licence to use the Software on a licensed AWS AMI paid for through the AWS marketplace for the term defined on the AWS marketplace. Fees for using the Software are detailed on the listing page on AWS Marketplace.

2.2 Licensee agrees that it will not: (i) disassemble, decompile, or reverse engineer (except in European Union countries, to the extent allowed by law) the Software; (ii) attempt to access/use portions of the program code for which Licensee has not acquired a licence; (iii) except as specifically authorised herein, distribute or transfer the Software; or (iv) reproduce, copy, modify, adapt, merge or translate the Software or any Documentation that Ellexus may provide other than for internal use of the Software within the scope of this Agreement and the applicable Order Schedule.

2.3 Licensee agrees that it will not: (i) create any derivative works based on the Software or the information and Documentation that Ellexus may provide (ii) deliberately introduce any viruses, worms or any other harmful material which may affect the Software.

3. Ownership

3.1 This Agreement does not convey any Intellectual Property Rights in the Software. All right, title, and interest in the Software and in any ideas, know-how, and programs which are developed by Ellexus in the course of providing any technical services, including any enhancements or modifications made to the Software, shall at all times remain the property of Ellexus or its licensor.

3.2 Licensee will not remove Ellexus’s or its licensor’s Intellectual Property Rights notices from any copies of the Software it uses, including archival and back-up copies.

4. Confidentiality

4.1 Each party shall maintain in confidence the Confidential Information disclosed by the other party and apply security measures no less stringent than the measures that such party applies to its own like information, but not less than a reasonable degree of care, to prevent unauthorised disclosure and use of the Confidential Information. The period of confidentiality shall be indefinite with respect to each party’s Confidential Information.

4.2 All representatives, agents, employees and contractors of either party are also bound by the confidentiality provisions above.

4.3. Both parties can only use Confidential Information for the purposes of this Agreement and cannot disclose it to any third party.

4.4 The provisions of this Clause shall not apply to information which (i) is known to and is in the possession of the receiving party, in tangible form, prior to disclosure by the other party; (ii) is, or becomes through no fault of the receiving party, generally known; (iii) is disclosed to the receiving party by a third party having the lawful right to make such disclosure provided that the information has not been illegally obtained; (iv) is independently conceived by the receiving party provided that the receiving party is able to prove on the balance of probabilities by adducing evidence of such independent conception; (v) is disclosed to a third party by the disclosing party without a restriction of confidentiality; or (vi) is required to be disclosed pursuant to the order of any court or other governmental body.         

5. Warranty and Disclaimer of Warranties

5.1. Ellexus warrants, to Ellexus’s knowledge and belief, that the Software does not infringe any third party copyright; and as at the Effective Date, there are no pending claims or actions commenced against Ellexus for infringement by the Software of any third party intellectual property rights.

5.2 Except if otherwise agreed, the warranties set forth in this Agreement are exclusive and in lieu of all other warranties, express or implied, with respect to the Software and any services provided hereunder. Ellexus specifically disclaims any warranties or merchantability and fitness for a particular purpose. No other warranties including any conditions, representations and any other terms except those expressly referred to in the Agreement will apply including those implied or expressed by statute and common law.

6. Limitation of Liability

6.1 Except for breach of confidentiality, neither party shall  be liable to the other party or to any third party for any special, consequential or incidental damages, whether such damages arise under a tort, contract or other claim, or damages to the systems, data or programs, even if such party has been informed to the possibility of such damages, or for any direct or indirect losses relating to loss of profits, business, depletion of good will and similar losses or loss of corruption of data. Liability for personal injury, fraud or fraudulent misrepresentation cannot be excluded by law.

6.2 In no case will Ellexus’s liability for damages hereunder exceed the licence fees paid or payable to Ellexus by Licensee under this Agreement during the most recent twelve (12) month period.

6.3In no case will Ellexus accept liability for a modification made to the Software, even when such modifications are permitted by the Licensee as detailed in the Order Schedule.

7. Term and Termination

7.1. This Agreement will take effect on the Effective Date selected on the AWS marketplace. This Agreement will remain in effect unless and until the licence term ends.

7.3 The following obligations will survive termination of this Agreement for any reason: (i) obligations relating to non-disclosure of confidential information (clause 4 of this Agreement); (ii) obligations relating to indemnification; (iii) obligations relating to liability (clause 6 of this Agreement); (iv) obligations relating to licence (clause 2 of this Agreement); and (v) obligations to make payments of amounts that become due under this Agreement prior to termination.

7.4 Ellexus has the right to terminate the licence in the case that the Licensee materially breaches this Agreement and does not remedy its breach within 30 days of being notified, or in the case that the Licensee goes insolvent.

8. General Terms

8.1. This Agreement shall be governed by, construed and take effect in accordance with English law and the English courts shall have exclusive jurisdiction to settle any claim or dispute which may arise out of or in connection with this Agreement.

8.2. Ellexus may include Licensee’s company name in a published list of Ellexus customers and any published work associated with this Agreement subject to review and approval of the Licensee’s Head of Communications in advance of any public release.

8.3. This Agreement constitutes the complete Agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein and expressly overrides any end user licence agreement included with the trial version or upon download of the relevant software. Any modifications of or changes to this Agreement shall be in writing and signed by both parties.

8.4 Ellexus has the right to assign this Agreement.