BOW - End User Licence Agreement

1. Interpretation

   1. The following definitions and rules of interpretation apply in this EULA:

2. BOW Software: any and all BOW software that BOW delivers to the Customer from time to time.

3. Charges: the amount paid by the Customer in respect of BOW Software.

   Customer: the person which has agreed to the terms and conditions of this EULA.

4. Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.

5. Maintenance Release: a release of the BOW Software that corrects faults, adds functionality or otherwise amends or upgrades the BOW Software.

6. Open-Source Software: any software programs which are licensed under any form of open-source licence meeting the Open Source Initiative's open source definition from time to time.

7. Specification: the specification of the applicable BOW Software on BOW’s website.

   2. Clause headings shall not affect the interpretation of this agreement.

   3. References to clauses are to the clauses of this agreement.

   4. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

   5. Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

   6. This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

   7. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

   8. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.

   9. A reference to writing or written excludes fax but not email.

   10. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

   11. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

8. Delivery of bow software

   1. Upon the Customer agreeing the terms of this end user licence, BOW shall make elements of the BOW Software accessible to the Customer by way of download and shall grant to the Customer a non-exclusive licence to use the applicable elements of the BOW Software internally to its business.

   2. When the Customer purchases other elements of the BOW Software, BOW shall grant to the Customer a non-exclusive licence to use the applicable elements of the BOW Software on and in relation to its robot(s).

   3. In relation to scope of use:

      1. for the purposes of clauses 2.2 and 2.2, use of the BOW Software shall be restricted to use of the BOW Software in object code form for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the BOW Software by, or for the benefit of, any person other than an employee of the Customer).

      2. the Customer may not use the BOW Software other than as specified in clauses 2.1, 2.2 and 2.3(a) without the prior written consent of BOW, and the Customer acknowledges that additional fees may be payable on any change of use approved by BOW.

      3. the Customer may make backup copies of the BOW Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the BOW Software and take steps to prevent unauthorised copying.

      4. except as expressly stated in this clause 2.3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the BOW Software in whole or in part except to the extent that any reduction of the BOW Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the BOW Software with the operation of other software or systems used by the Customer, unless BOW is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request BOW to carry out such action or to provide such information before undertaking any such reduction.

   4. The Customer may not use any such information provided by BOW or obtained by the Customer during any such reduction permitted under clause 2.3(d) to create any software whose expression is substantially similar to that of the BOW Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

   5. The Customer shall not:

      1. sub-license, assign or novate the benefit or burden of this licence in whole or in part;

      2. allow the BOW Software to become the subject of any charge, lien or encumbrance; and

      3. deal in any other manner with any or all of its rights and obligations under this agreement,

   without the prior written consent of BOW, such consent not to be unreasonably withheld or delayed.

   6. BOW may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.

   7. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

   8. The Customer shall:

      1. ensure that the BOW Software is installed on designated equipment only;

      2. keep a complete and accurate record of the Customer's copying and disclosure of the BOW Software and its users, and produce such record to BOW on request from time to time;

      3. notify BOW as soon as it becomes aware of any unauthorized use of the BOW Software by any person;

      4. pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which BOW would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.

   9. The Customer shall permit BOW to inspect and have access to any premises (and to the computer equipment located there) at or on which the BOW Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that BOW provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

9. Maintenance releases and support

   1. BOW will notify the Customer (using the BOW Hub) of all Maintenance Releases generally made available to its customers. BOW warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the BOW Software provided that the Customer is responsible for testing each Maintenance Release and making any changes to its own software that are necessary as a result of that Maintenance Release. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.

10. Bow warranties

    1. BOW warrants that the BOW Software will on delivery to the Customer conform in all material respects to the Specification. If the Customer notifies BOW in writing of any defect or fault in the BOW Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the BOW Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other BOW Software not provided by BOW, or it has not been loaded onto BOW-specified or suitably configured equipment, BOW shall, at BOW's option, do one of the following:

       1. repair the BOW Software;

       2. replace the BOW Software; or

       3. terminate this agreement immediately by notice in writing to the Customer and refund any Charges paid by the Customer for the applicable BOW Software as at the date of termination (less a reasonable sum in respect of the Customer's use of the BOW Software to the date of termination) on return of the BOW Software and all copies thereof,

    provided the Customer provides all the information that may be necessary to assist BOW in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable BOW to re-create the defect or fault.

    2. BOW does not warrant that the use of the BOW Software will be uninterrupted or error-free.

    3. The Customer accepts responsibility for the selection of the BOW Software to achieve its intended results and acknowledges that the BOW Software has not been developed to meet the individual requirements of the Customer.

    4. The Customer acknowledges that any Open-Source Software provided by BOW is provided "as is" and expressly subject to the disclaimer in clause 4.5.

    5. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

11. Limits of liability

    1. Except as expressly stated in clause 5.2:

       1. BOW shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

          1. special damage even if BOW was aware of the circumstances in which such special damage could arise;

          2. loss of profits;

          3. loss of anticipated savings;

          4. loss of business opportunity;

          5. loss of goodwill;

          6. loss or corruption of data;

          7. wasted expenditure,

       provided that this clause 5.1(a) shall not prevent claims for loss of or damage to the Customer's tangible property or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this clause 5.1(a);

       2. the total liability of BOW, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed in relation to each supply of BOW Software a sum equal to the greater of £100 and the Charges for that BOW Software; and

       3. the Customer agrees that, in entering into this agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) BOW shall have no liability in any circumstances otherwise than in accordance with the express terms of this agreement.

    2. The exclusions in clause 4.5 and clause 5.1 shall apply to the fullest extent permissible at law, but BOW does not exclude liability for:

       1. death or personal injury caused by the negligence of BOW, its officers, employees, contractors or agents;

       2. fraud or fraudulent misrepresentation;

       3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

       4. any other liability which may not be excluded by law.

    3. BOW shall not in any circumstances be liable for any loss or damage arising from any delay in delivery of the BOW Software.

    4. All references to "BOW" in this clause 5 shall, for the purposes of this clause and clause 13 only, be treated as including all employees, subcontractors and suppliers of BOW and its Group companies, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

12. Intellectual property rights

    1. The Customer acknowledges that all Intellectual Property Rights in the BOW Software and any Maintenance Releases belong and shall belong to BOW or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the BOW Software other than the right to use it in accordance with the terms of this agreement.

    2. BOW shall defend the Customer against any claim that the Customer's use of the BOW Software in accordance with this agreement infringes any Intellectual Property Rights of a third party (Claim). For the avoidance of doubt, clause 6.2 shall not apply where the Claim in question is attributable to possession or use of the BOW Software (or any part thereof) by the Customer other than in accordance with the terms of this agreement, use of the BOW Software in combination with any hardware or BOW Software not supplied or specified by BOW if the infringement would have been avoided by the use of the BOW Software not so combined, or use of a non-current release of the BOW Software.

    3. If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, BOW's obligations under clause 6.2 are conditional on the Customer:

       1. as soon as reasonably practicable, giving written notice of the Claim to BOW, specifying the nature of the Claim in reasonable detail;

       2. not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of BOW (such consent not to be unreasonably conditioned, withheld or delayed);

       3. giving BOW and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable BOW and its professional advisers to examine them and to take copies (at BOW's expense) for the purpose of assessing the Claim; and

       4. subject to BOW providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as BOW may reasonably request to avoid, dispute, compromise or defend the Claim.

    4. If any Claim is made, or in BOW's reasonable opinion is likely to be made, against the Customer, BOW may at its sole option and expense:

       1. procure for the Customer the right to continue to use the BOW Software (or any part thereof) in accordance with the terms of this agreement;

       2. modify the BOW Software so that it ceases to be infringing;

       3. replace the BOW Software with non-infringing BOW Software; or

       4. terminate this agreement immediately by notice in writing to the Customer and refund any of the Charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the BOW Software to the date of termination) on return of the BOW Software and all copies thereof,

    provided that if BOW modifies or replaces the BOW Software, the modified or replacement BOW Software must comply with the warranties contained in clause 4.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this agreement been references to the date on which such modification or replacement was made.

    5. Notwithstanding any other provision in this agreement, clause 6.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any third party software or through the breach of any terms applying to that software, in each case by the Customer.

    6. This clause 6 constitutes the Customer's exclusive remedy and BOW's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 5.1.

13. Termination

    1. Without affecting any other right or remedy available to it, BOW may terminate this agreement with immediate effect by giving written notice to the Customer if:

       1. the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than [seven] days after being notified in writing to make such payment;

       2. the Customer commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of [30] days after being notified [in writing] to do so;

       3. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

       4. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

       5. the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

       6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

       7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership);

       8. the holder of a qualifying floating charge over the assets of the Customer (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

       9. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

       10. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;

       11. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.1(c) to clause 7.1(j) (inclusive);

       12. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

       13. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

    2. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

    3. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

    4. On termination for any reason:

       1. all rights granted to the Customer under this agreement shall cease;

       2. the Customer shall cease all activities authorised by this agreement;

       3. the Customer shall immediately pay to BOW any sums due to BOW under this agreement; and

       4. the Customer shall immediately destroy or return to BOW (at BOW's option) all copies of the BOW Software then in its possession, custody or control and, in the case of destruction, certify to BOW that it has done so.

14. Waiver

    1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

    2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

15. Remedies

    Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

16. Entire agreement

    1. This agreement and any documents referred to in this agreement contain the whole agreement between the parties relating to the subject matter hereof and supersede all previous and contemporaneous agreements, arrangements and understandings between them, whether written or oral, relating to that subject matter.

    2. Each party acknowledges that, in entering into this agreement and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) (Representation) other than as expressly set out in this agreement or those documents.

    3. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.

    4. Nothing in this clause shall limit or exclude any liability for fraud.

17. Variation

    No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18. Severance

    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

    2. If any provision or part-provision of this agreement is deemed deleted under clause 12.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. Third-party rights

    1. BOW and the entities referred to in clause 5.4 may enforce the terms of clause 4 and clause 5 to the fullest extent permitted by law as if they were a party to this agreement, subject to and in accordance with this clause 13, this agreement and the Contracts (Rights of Third Parties) Act 1999.

    2. Except as provided in clause 13.1, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

    3. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement.

20. No partnership or agency

    1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

21. Force majeure

    Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.

22. Notices

    1. Any notice given to a party under or in connection with this contract shall be in writing and shall be:

       1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

       2. sent by email to the email address habitually used by the recipient in relation to this agreement.

    2. Any notice shall be deemed to have been received:

       1. if delivered by hand, at the time the notice is left at the proper address;

       2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

       3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

    3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include e-mail.

23. Governing law and jurisdiction

    1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

    2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) provided that either party may enforce any judgment of the courts of England and Wales in the courts of any jurisdiction.