FLEXIDB SOFTWARE LICENCE AGREEMENT
IMPORTANT NOTICE: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE REGISTERING TO USE THIS SOFTWARE
This licence agreement (the "Agreement") is a legal agreement permitting you to use our Software. By clicking on the "I AGREE" checkbox below, or by registering with us or accessing or using the Software, you are agreeing to the terms of this Agreement which will bind you and anybody using the Software on your behalf. If you do not agree to the terms of this Agreement, we are unwilling to licence the Software to you and you must not access or use the Software. If you are registering to use the Software on behalf of a company or organisation, by clicking "I AGREE" you represent that you are authorised to accept the terms of this Agreement on behalf of that company or organisation.
- In this Agreement the following terms shall have the following meanings:
Commencement Date means the date on which the Licensee registers to use the Software and confirms that it agrees to the terms and conditions of this Agreement; Data Channel means a software application, smartphone application or website, together with any accompanying database, which is developed by the Licensee using the Software; Documentation means any electronic or other documentation which accompanies the Software; FlexiDB means FlexiDB Limited (Company Number: 07927019) of St Brandon's House, 29 Great George Street, Bristol, BS1 6BN, United Kingdom; FlexiLogin means FlexiDB's digital passport technology and portal, details of which can be found at https://login.flexidb.com/, which enables Subscribers to subscribe or register to access and use Data Channels; Initial Term shall have the meaning given in clause 14.1; Licence Fees means the licence fees to be paid by the Licensee to FlexiDB pursuant to clause 8 in respect of the Software; Licence Type means the different types of licence to use the Software which are available from FlexiDB, as detailed in Appendix 1; Licensee means the person, company, organisation or other legal entity taking a licence of the Software, as detailed in the Registration Form; Registration Form means the online registration form which must be completed by the Licensee to access and use the Software; Renewal Term shall have the meaning given in Clause 14.1; Software means FlexiDB's software product known as FlexiDB, together with any new releases to that software which are made available to the Licensee by FlexiDB pursuant to this Agreement and the Documentation; Subscriber means an end user (being a named individual) who is permitted to subscribe or register to access and use a Data Channel; Support Services means the support services to be provided by FlexiDB to the Licensee, which are applicable to the Licence Type purchased by the Licensee, as detailed in Appendix 1 and 2; Term means the term of this Agreement, as detailed in clause 14, comprising the Initial Term and any Renewal Terms; Warranty Period means the period of thirty (30) days following the Commencement Date;
- In this Agreement the following terms shall have the following meanings:
Grant and scope of licence
- Provided that the Licensee has paid any applicable Licence Fees in full and subject to the terms and
conditions of this Agreement, FlexiDB hereby grants to the Licensee, a non-exclusive,
non-transferable licence during the Term to do the following:
- download and install the Software on an unlimited number of computers and servers under the Licensee's control; and
- use the Software for the purposes for which it was intended, namely to create and deploy an unlimited number of Data Channels; and
- allow Subscribers to access and use any Data Channels which have been created and deployed by the Licensee using the Software, subject to and in accordance with clause 3 and 4 below; and
- use the Documentation in support of the use permitted under this clause 0.
- Provided that the Licensee has paid any applicable Licence Fees in full and subject to the terms and conditions of this Agreement, FlexiDB hereby grants to the Licensee, a non-exclusive, non-transferable licence during the Term to do the following:
- The Software has been developed to create Data Channels which are accessed by Subscribers using
FLEXILOGIN and it is a condition of this Licence that FLEXILOGIN be used for this purpose.
Accordingly, in order to use the Software, the Licensee must ensure that it has registered with
FlexiDB and that it keeps its registration details up to date. In addition, with respect to any Data
Channels which are deployed by the Licensee, the Licensee must:
- notify details of the Data Channel to FlexiDB and ensure that that Data Channel is registered on the FLEXILOGIN portal; and
- ensure that Subscribers are only permitted to access and use that Data Channel using the FLEXILOGIN digital passport.
- Details of all Data Channels deployed by the Licensee will be published on the FLEXILOGIN portal. However, if "Private Portal" is included as a feature as part of the Licence Type purchased by the Licensee, then the Licensee will be able to create and control access to a private area where its Data Channels can be viewed and accessed only by its chosen Subscribers. For all other Licence Types a full list of the Licensee's Data Channels will be visible to the public.
- The Software has been developed to create Data Channels which are accessed by Subscribers using FLEXILOGIN and it is a condition of this Licence that FLEXILOGIN be used for this purpose. Accordingly, in order to use the Software, the Licensee must ensure that it has registered with FlexiDB and that it keeps its registration details up to date. In addition, with respect to any Data Channels which are deployed by the Licensee, the Licensee must:
- The number of Subscribers who the Licensee may permit to subscribe or register to access and use Data Channels created or deployed by the Licensee under this Agreement, will depend on the Licence Type which the Licensee has purchased as detailed in Appendix 1. The Licensee agrees that it will not allow any applicable Subscriber limits detailed in Appendix 1 to be exceeded, without first upgrading its Licence Type.
- For the purposes of this clause and Appendix 1, any reference to the number of Subcribers for a particular Licence Type is the total number of Subscribers who the Licensee may permit to subscribe or register to access and use all (not each) Data Channel(s) created or deployed by the Licensee using the Software. The number of Data Channels the Licensee may create and deploy using the Software is not limited.
Except as expressly set out in clause 0 above no other rights or licences to use the Software or
Documentation are granted to the Licensee under the terms of this Agreement. In particular (but
limitation) the Licensee must only use the Software to create and deploy bona fide Data Channels.
Licensee may not (without the FlexiDB's prior written consent) do the following:
- Use the Software (or any part of it) to develop any software or product which is intended to be used by others as, or is capable of being used as, a software development toolkit; or
- Use the Software (or any part of it) to develop any software product or other product which is directly or indirectly competitive with the Software; or
- Publish or redistribute any part of the Software as part of a product falling within clause 5.1.1 or 5.1.2 above.
- If the Licensee wishes to use the Software in ways which are not permitted by this Agreement, it must obtain FlexiDB's prior written permission. FlexiDB may (in its absolute discretion) grant the Licensee such permission (subject to such terms as FlexiDB may require) or refuse to do so.
- Except as expressly set out in clause 0 above no other rights or licences to use the Software or Documentation are granted to the Licensee under the terms of this Agreement. In particular (but without limitation) the Licensee must only use the Software to create and deploy bona fide Data Channels. The Licensee may not (without the FlexiDB's prior written consent) do the following:
Except as expressly set out in this Agreement or as may be permitted by mandatory provisions of any
applicable local law, the Licensee undertakes:
- not to copy the Software or Documentation except where such copying is incidental to, or reasonably necessary for, the normal use of the Software and Documentation, as permitted under this Agreement;
- not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
- not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things;
- to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
- to include FlexiDB's copyright notices and other legal notices on all entire and partial copies of the Software in any form.
- Subject to FlexiDB agreeing to abide by any reasonable requirements regarding security and confidentiality, the Licensee must permit FlexiDB its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Agreement, for the purpose of ensuring that the Licensee is complying with the terms of this Agreement.
- Except as expressly set out in this Agreement or as may be permitted by mandatory provisions of any applicable local law, the Licensee undertakes:
- The Licensee acknowledges and agrees that it is solely responsible for the use which it makes of the Software and for any Data Channels which it may develop, deploy or publish.
- The Licensee may only use the Software for lawful purposes and must ensure that that any Data Channels it develops comply with all applicable laws. In particular (but without limitation) the Licensee you must not develop, publish or redistribute any Data Channels which: (i) breach any applicable local, national or international law or regulation; (ii) are otherwise unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) have been created for the purpose of harming or attempting to harm minors in any way; (iv) have been created to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware. The Licensee must adhere to any and all policies, recommendations and guidance FlexiDB may issue from time to time concerning acceptable uses to which the Software may be put.
- FlexiDB reserves the right (in its absolute discretion) to terminate this Agreement and the rights granted to the Licensee to use the Software in the event that: (i) the Licensee has breached its obligations under clause 7.2; or (ii) the Licensee's use of the Software or any Data Channels it has created may expose FlexiDB to any civil or criminal liability, or could damage FlexiDB's reputation or the reputation of the Software, or is otherwise objectionable.
- The Licensee agrees to indemnify FlexiDB and hold FlexiDB harmless from any costs, losses, claims or liabilities which may result from the Licensee's use of the Software or any Data Channel's the Licensee may create.
- Where the Licensee has purchased a licence of the Software, then following the Commencement Date and provided that the Licensee has paid all applicable Licence Fees by the due date for payment, FlexiDB shall provide the Support Services using reasonable skill and care.
- The Support a Services to be provided to the Licensee shall depend upon the Licence Type which the Licensee has purchased and shall be provided in accordance with the provisions of Appendix 1 and 2.
Fees and Payment
- In consideration of the licence to use the Software granted under this Agreement and (where applicable) the provision of Support Services, the Licensee agrees to pay to FlexiDB any applicable Licence Fees for the Licence Type it holds. The License may elect to pay the Licence Fee annually or monthly in advance, as detailed in Appendix 1.
- The Licence Fee due in respect of the Initial Term will depend on the Licence Type purchased by the Licensee and shall be as detailed in Appendix 1. Thereafter, in advance of each anniversary of the Commencement Date, FlexiDB shall inform the Licensee by email (or other form of written communication) of the Licence Fees which must be paid on renewal of this Agreement in respect of the forthcoming Renewal Term and (subject to clause 14.2) the Licensee agrees to pay all Licence Fees in advance.
- Unless otherwise agreed in writing, all Fees and other sums due under this Agreement shall be paid via Paypal or by credit or debit card payment or by bank transfer to such bank account as FlexiDB may nominate from time to time.
- All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, which (where applicable) the Licensee shall be responsible for paying in addition at the rate prescribed by applicable law.
- In the event that the Licensee fails to pay any Licence Fees due under this Agreement by the due date for payment, FlexiDB shall be entitled (without prejudice to any other rights or remedies which may be available to FlexiDB): (i) to pursue the Licensee for payment of the outstanding Licence Fee together with late payment interest at the rate prescribed by law and any costs reasonably incurred by FlexiDB in seeking payment; and/ or (ii) to downgrade the Licensee's licence Type to Free and limit access to the Licensee's Data Channel's accordingly until the outstanding sums have been paid in full; and/ or (iii) to terminate this Agreement in its entirety pursuant to clause 14.3.1 and enforce its rights under clause 14.4.
Intellectual property rights
- The Licensee acknowledges that all copyright and other intellectual property rights in the Software and the Documentation throughout the World belong to FlexiDB, that rights in the Software are licensed (not sold) to the Licensee, and that the Licensee has no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Agreement.
- The integrity of this Software may be protected by technical protection measures so that FlexiDB's intellectual property rights, including but not limited to copyright, in the Software are not misappropriated. The Licensee must not attempt in any way to remove or circumvent any such technical protection measures, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in its possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.
- The FLEXIDB and FLEXILOGIN logos are the registered trade marks of FlexiDB Limited in the European Union and United States. The FLEXIDB and FLEXILOGIN brands may also the subject of pending trade mark applications and unregistered rights elsewhere in the World.
- The Licensee may use the approved statements "Powered by FLEXIDB" and "Login with FLEXILOGIN" on any Data Channels the Licensee creates and deploys, provided that the Licensee complies with any applicable branding guidelines FlexiDB may issue from time to time.
- Except as expressly set out in clause 11.2, the Licensee may not use the FLEXIDB and FLEXILOGIN trade marks or any other trade marks owned by FlexiDB without FlexiDB's prior written consent.
- If the Licensee has taken a "Free" licence of the Software, the Software is made available to the Licensee free of charge on an "AS IS" basis and, to the maximum extent permitted by law, FlexiDB disclaims all express or implied warranties, including but not limited to implied warranties of satisfactory quality, fitness for a particular purposes and non-infringement.
- If the License has purchased a licence to use the Software and paid any applicable Licence Fee, FlexiDB warrants that during the Warranty Period the Software will, when properly used, perform substantially in accordance with the functions described in the accompanying Documentation. If, within the Warranty Period, the Licensee notifies FlexiDB in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from the Licensee having amended the Software or used it in contravention of the terms of this Agreement, FlexiDB will, at its sole option, either (i) repair or replace the Software (provided that the Licensee makes available all information that may be necessary to assist FlexiDB in resolving the defect or fault, including sufficient information to enable FlexiDB to recreate the defect or fault); or (ii) refund to the Licensee any licence fees paid to use the Software. This Clause sets out the Licensee’s sole remedy and FlexiDB’s sole liability for any breach of the warranty detailed in this clause 12.2.
- Notwithstanding clause 12.1, the Licensee acknowledges that the Software has not been developed to meet the Licensee’s individual requirements and that the Licensee has been given the opportunity to use the Software on a "Free" basis before committing to purchase a licence of the Software. Accordingly, it is the Licensee’s responsibility to ensure that the facilities and functions of the Software, as described in the Documentation, meet the Licensee’s requirements.
- Notwithstanding Clause 12.1, the Licensee acknowledges that the Software may not be free of bugs or errors and the Licensee agrees that the existence of any minor errors shall not constitute a breach of this Agreement.
- Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence or for fraud, fraudulent misrepresentation or for any other liability which cannot be limited or excluded under applicable law.
- Subject to clause 13.1, FlexiDB's liability for losses suffered by the Licensee arising out of or in connection with this Agreement, whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall (to the fullest extent permitted by law) exclude: (a) loss of income; (b) loss of business profits or contracts; (c) business interruption; (d) loss of the use of money or anticipated savings; (e) loss of information or data; (f) loss of opportunity, goodwill or reputation; (g) loss of, damage to or corruption of data; or (h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
- Subject to clause 13.1, FlexiDB's maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to any Licence Fees paid by the Licensee under this Agreement.
- This Agreement sets out the full extent of FlexiDB's obligations and liabilities in respect of the supply of the Software and Documentation and the Support Services. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on FlexiDB except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation and Support Services which might otherwise be implied into, or incorporated in, this Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
Term and Termination
- This Agreement shall commence on the Commencement Date and shall continue thereafter for an initial period of one (1) year (the "Initial Term"). Following the Initial Term this Agreement shall continue automatically for further consecutive periods of one (1) year (each a "Renewal Term") unless or until this Agreement is terminated in accordance with clause 14.2 below.
- Either party may terminate this Agreement for convenience with effect from the end of the Initial Term or any Renewal Term, by giving the other not less than thirty (30) days prior written notice.
FlexiDB may terminate this Agreement with immediate effect at any time by notice in writing to
- if any sum required to be paid to FlexiDB under the terms of this Agreement is not paid or submitted at the latest within fourteen (14) days following its due date; or
- if the Licensee is in material or persistent breach of this Agreement and (where such breach is remediable) has failed to remedy such breach within a period of thirty (30) days of the receipt of a notice in writing from requiring it to do so; or
- if the Licensee is wound-up or becomes insolvent or are deemed unable to pay its debts or is subject to any application or any procedure for winding up or corporate reorganisation (except for the purpose a reconstruction, or amalgamation without insolvency); or if a liquidator, receiver or manager is appointed in relation to the Licensee or any part of it; or if an administration order is made against the Licensee; or if any part of the Licensee's assets is lawfully seized as payment or security for payment; or if any procedure of similar effect to any of the foregoing is commenced in any jurisdiction or any other event occurs that causes the Licensee's dissolution.
Upon termination or expiry of this Agreement for any reason:
- all rights granted to the Licensee under this Agreement shall cease and the Licensee must cease all activities authorised by this Agreement;
- the Licensee must immediately pay to FlexiDB any sums due to FlexiDB under this Agreement; and
- the Licensee must (if requested to do so by FlexiDB) immediately delete or remove the Software from all computer equipment in its possession or under its control and immediately destroy or return to FlexiDB (at FlexiDB’s option) all copies of the Software and Documentation then in the Licensee’s possession, custody or control and, in the case of destruction, certify to FlexiDB that this has been done.
- All notices under this Agreement shall be in writing and must be in English. Notices shall be deemed to have been duly given: (i) when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or (ii) when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or (iii) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or (iv) on the tenth business day following mailing, if mailed by airmail, postage prepaid, in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
- Except as expressly provided in this Agreement, the Licensee may not transfer, assign, charge, sell, resell or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, without FlexiDB's prior written consent. FlexiDB may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement.
- If FlexiDB fails, at any time during the term of this Agreement, to insist on strict performance of any of the Licensee’s obligations under this Agreement, or if FlexiDB fails to exercise any of the rights or remedies to which FlexiDB is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.
- If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- This Agreement and any document expressly referred to in it represents the entire agreement between the parties in relation to the licensing of the Software and Documentation and provision of the Support Services, supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. The parties to this Agreement each acknowledge that, in entering into this Agreement, neither party has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between the parties before entering into this Agreement except as expressly stated in this Agreement.
- No person who is not a party to this Agreement may enforce any term of this Agreement and the parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
- This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.
- This FLEXIDB Software Licence Agreement was last updated on 9 June 2016.
This Appendix details the usage limitations, level of support and Licence Fees applicable to different Licence Types. Currently the following Licence Types are available:
|Licence Feature||Free||Single Site||Business||Agency|
|No. of Subscribers||5||100||500||5000|
|Support Services||Free||Single Site||Business||Agency|
|Ticket Response Time1||Community Forum Only||Within 2 Working Days||Within 1 Working Day||Within 5 Working Hours|
|Number of Active Tickets||0||1||1||3|
|Licence Fees2||Free||Single Site||Business||Agency|
|Monthly Licence Fee||$0||$10||$30||$150|
|Monthly Licence Fee (Annualised)||$0||$120||$360||$1,800|
|Discounted Annual Licence Fee (paid upfront)||$0||$100||$300||$1,500|
(1) References to "Working Hours" and Working Days" are to working hours and working days at nearest support centre to the Licensee which is operated by FlexiDB. FlexiDB currently operates support centres in the US, UK and Russia during the hours of 9am to 5pm local time, Monday to Friday (excluding public holidays). FlexiDB may change its support centres by notice in writing at any time.
(2) All Licence Fees stated are for the Initial Term. The Licensee may opt to pay Licence Fees due in respect of the Initial Term in twelve monthly instalments at the beginning of each month during the Initial Term (see Monthly Licence Fee). Alternatively, the Licence may opt to pay the Licence Fee for the Initial Term upfront at a discounted rate (see Discounted Annual Licence Fee). The Licence Fees due in respect of any Renewal Term will be as notified to the Licensee by FlexiDB in writing or as stated in FlexiDB's standard price list as at the renewal date.
Duration of Support Services
- During the Term of this Agreement and provided that the Licensee has paid all Licence Fees due under this Agreement by the due date for payment, FlexiDB will supply the Support Services applicable to the Licence Type held by the Licensee, in accordance with this Appendix 2.
- Dependant upon the Licence Type which the Licensee has purchased, Support Services may include Maintenance and Technical Support, as further detailed below.
- Maintenance shall comprise the following: (i) access to any upgrades, updates and new releases of the Software (in object code form only) which FlexiDB makes generally available to its Licensors without additional charge from time to time; and (ii) access to web-based/ online documentation and community forums operated by FlexiDB concerning the Software.
- Barring unforeseen interruptions or planned exceptions, access to web-based/ online documentation and community forums will usually be available 24 hours a day, 365 days a year. However, FlexiDB does not guarantee such availability.
- Technical Support shall comprise the ability to log technical queries and request for support and assistance in relation to the Software ("Tickets") via FlexiDB's online support portal at [INSERT URL] (the "Support Portal").
- Barring unforeseen interruptions or planned exceptions, access to Support Portal will usually be available 24 hours a day, 365 days a year. However, FlexiDB does not guarantee such availability.
- The number of Tickets which the Licensee may have active on the Support Portal at any given time shall be limited dependent upon Licence Type as detailed in Appendix 1 and FlexiDB may decline to respond to any Tickets which are logged in excess of this number.
- FlexiDB undertakes to use reasonable endeavours to respond to Tickets within the Ticket Response Times applicable to the Licensee's Licence Type as detailed in Appendix 1. This is the elapsed time between the receipt of the Ticket and a written or verbal confirmation of its receipt being made to the Licensee. The time taken to resolve the Ticket, if such resolution is undertaken, is not specified or guaranteed.
- FlexiDB will use reasonable endeavours to resolve Tickets and requests for Technical Support to the Licensee's satisfaction. FlexiDB, however, gives no guarantee that it can or will solve all Tickets and support requests presented by the Licensee.
Other General Conditions
- FlexiDB shall be under no obligation to provide Technical Support in relation to issues which are caused by: (i) the Licensee's improper use, improper configuration, or custom alteration or extension or modification of the Software; (ii) the Licensee's use of the Software with hardware or software outwith the specifications defined in the Agreement or Documentation, or not supplied or supported by FlexiDB; (iii) the Licensee's failure to install an upgrade, update or new release to the Software which includes a fix to the issue; or (iv) the Licensee's use of the Software in a manner outwith the terms of the Agreement or these Support Services Terms.
- The Licensee is deemed to be responsible for all issues not directly related to the Software including, but not limited to, other software, hardware, operating systems, networking, file systems and databases.
- Where appropriate documentation exists to adequately cover the subject of a Ticket or request of Technical Support, the Licensee may be directed to such documentation as a resolution.
- Any new releases, upgrades, updates, bug fixes or other materials relating to the Software which are made available to the Licensee as part of the Support Services shall be considered to be part of the Software and subject to the terms and conditions set out in the body of the Agreement.