License Agreement

IMPORTANT NOTICE:  PLEASE READ CAREFULLY BEFORE INSTALLATION:

This agreement (“Agreement”) is a legal agreement between You (“you”) and SquaredUp Limited registered as a company in England and Wales with company number 07834869 at registered office address Building 4, Foundation Park, Roxborough Way, Maidenhead, SL6 3UD, United Kingdom (“Cookdown”) for the use of the software described in the quotation or order confirmation provided by Cookdown, a trading name of SquaredUp Ltd. (“Software”) and the associated media, printed materials and online or electronic documentation relating to the Software (“Documentation”). The delivery documentation accompanying the software license key (“the Order Schedule”) shall form part of this Agreement.

By installing the Software you agree to be bound by the terms of this Agreement, including the Order Schedule.

If you do not agree to the terms of this Agreement then you must not install the Software or use the Documentation and you should contact Cookdown at sales@cookdown.com or at the address above within 10 days of purchasing the Software for a refund.

If you bought the Software from an authorised third party retailer, please note that the retailer has the right to enter into this Agreement on our behalf.

1. Grant and scope of license

1.1 In consideration of the payment of the License Fee (as set out in the Order Schedule) Cookdown hereby grants to you a non-exclusive, non-transferable license (“the License”) to use the Software and the Documentation for the License Term on the terms of this Agreement.

1.2 If any additional supplementary software including additional tools, modules or any patches or modifications relating to the Software are made available to you by Cookdown after the release of the Software, such additions and modifications, where installed by you, shall form part of the Software and shall be subject to the terms of the Agreement and License.

1.3 You may:

(a) download, install and use the Software for your internal business purposes only;

(b) install the Software on any number of computers reasonably required to achieve the desired performance and availability;

(c) use the Software either (as agreed between the parties as set out in the Order Schedule):

(i) if the License is a “SCOM Agent” license, in relation to a single Management Group by no more than the number of SCOM Agents agreed between you and us as set out in the Order Schedule;

(ii) if the License is a “Configuration Item (CI) Class” license, in relation to a single ServiceNow Instance by no more than the number of Configuration Items per Configuration Item Class agreed between you and us as set out in the Order Schedule;

(iii) if the Licence is a “Business Services” licence, in relation to a single Management Group by no more than the number of Business Services agreed between you and us as set out in the Order Schedule;

(iv) if the Licence is a “Configuration Item (CI)” licence, in relation to a single Management Group by no more than the number of Configuration Items agreed between you and us as set out in the Order Schedule;

(iiv) if the Licence is a “Named User” licence, in relation to a single Management Group by no more than the number of named Users agreed between you and us as set out in the Order Schedule;

(iiiv) if the Licence is a “Concurrent User” licence, in relation to a single Management Group by no more than the number of concurrent Users agreed between you and us as set out in the Order Schedule;

For the purposes of this License “Management Group” shall mean a Microsoft System Center Operations Manager management group.

For the purposes of this License “Named User” shall mean a static, individual, identified user of the Software to whom a Cookdown Named User license has been assigned. A Cookdown license will remain assigned to a Named User irrespective of whether that User is logged-in to the Software or not. You are not permitted to assign a Cookdown license to a shared or pooled User account.

For the purposes of this License “Concurrent User” shall mean any User permitted to log-in and access the Software using a concurrent user license model. Upon logging-in to the Software a Concurrent User will consume a license from a pool of user licenses for the duration of their session and that license will then be returned to the pool after the Concurrent User logs out of the Software.

For the purposes of this License “Business Service” shall mean a static object of type “cmdb_ci_service” stored in ServiceNow’s Configuration Management DataBase (CMDB) which has been supplemented by objects discovered and/or mapped using Cookdown software. A Cookdown Business Service license will remain assigned to a Business Service irrespective of the number of configuration items created/updated/mapped to each Business Service. You may free up a Cookdown Business Service license by deleting the Business Service, relationship data using the tools provided. Mapping a Business Service and converting it to another ServiceNow object type (for example “cmdb_ci_appl”) is prohibited and if done, will not reduce the licensed number of Business Services consumed.

For the purposes of this License “Configuration Item” shall mean a static object of type “cmdb_ci” stored in ServiceNow’s Configuration Management Database (CMDB), which has been discovered, mapped or modified in any way using Cookdown software. A Cookdown Configuration Item license will remain assigned to a Configuration Item irrespective of whether the Configuration Item was created by Cookdown software, the property data added/removed or mapping between Configuration Items created/modified. Cookdown Configuration Item licenses can only be freed up by deleting the Configuration Item in ServiceNow.

For the purposes of this License “Configuration Item Class” shall mean a table or an extension to a table in ServiceNow’s Configuration Management Database (CMBD) (typically prefixed “cmdb_ci” or derived from a table with this prefix and visible in ServiceNow’s “CI Class Manager”). A Cookdown Configuration Item Class license will be bound to a single specific Configuration Item Class on its issue and cannot be changed once issued

(d) use any Documentation in support of the permitted use of the Software and make such copies of the Documentation as are reasonably necessary for its lawful use; and

(e) where you have purchased an annual subscription licence, or purchased annual maintenance, receive support services as set out in the Support Agreement / Schedule.

1.4 You shall be responsible for the acts and omissions of your Users in relation to the Software and any breaches of the Agreement or License by them shall be deemed to be a breach by you;

1.5 The License shall subsist for the License Term as described in the Order Schedule.

2. Your undertakings

2.1 Where you have selected Software described as “Evaluation” in the Order Schedule, you are permitted to use the Software for evaluation purposes only (“Evaluation”) for the Evaluation Period set out in the Order Schedule.  You undertake not to use the Software for any purposes other than Evaluation during the Evaluation Period.

2.2 Where the Software that you have selected is described as either “Preview” or “Beta Release” in the Order Schedule you agree not to use it in a production environment where any malfunction may cause loss and/or damage to your systems, data or business.

2.3 Where you have selected Software described as either “Test”, “Demo” “NFR” or “NFP” in the Order Schedule you agree not to use it in a production environment.

2.4 Except as expressly set out in this Agreement or as permitted by any local law, you undertake:

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

(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;

(c) 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;

(d) not to disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software nor attempt to do any such things 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 Software with another software program, and provided that the information obtained by you during such activities:

 (i) is used only for the purpose of achieving inter-operability of the Software with another software program; and

 (ii) is not unnecessarily disclosed or communicated to any third party without Cookdown’s prior written consent; and

 (iii) is not used to create any software which is substantially similar to the Software;

(e) to control the use of the Software and ensure that your Users use the Software in accordance with the terms of this Agreement;

(f) to include the copyright notice of Cookdown on all entire and partial copies you make of the Software on any medium.

2.5 You must permit Cookdown and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises at which the Software or the Documentation is being kept or used, to the computer equipment located there, and to any records kept pursuant to this Agreement, for the purpose of ensuring that you are complying with the terms of this Agreement.

3. Intellectual property rights

3.1 For the purposes of this Agreement, “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may, now or in the future, subsist in any part of the world relating to Cookdown owned by, licensed to or acquired by Cookdown from time to time.

3.2 You acknowledge that all Intellectual Property Rights in the Software and the Documentation throughout the world belong to Cookdown or its licensors, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of Agreement.

3.3 You acknowledge that you have no right to have access to the Software in source code form.

3.4 The integrity of the Software is protected by technical protection measures (“TPM”) so that the intellectual property rights, including copyright, in the Software of Cookdown are not misappropriated.  You must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.

4. Confidentiality

4.1 For the purposes of this Agreement “Confidential Information” shall mean any information which is disclosed to you by Cookdown pursuant to, or in connection with, this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential), or which otherwise comes into your hands in relation to the business of Cookdown other than information which is already in the public domain (otherwise than as a result of a breach of any obligation of confidentiality).

4.2 You undertake that it shall not at any time during this Agreement or following its termination, for whatever reason, copy, use or disclose to any person any Confidential Information, except as permitted by this Agreement.

4.3 You may disclose Confidential Information:

(a) to the employees, officers, representatives or advisers of the Licensee who need to know such information for the purposes of carrying out its obligations under this Agreement. You shall ensure that the employees, officers, representatives or advisers to whom the Confidential Information is disclosed comply with this clause 4;

(b) where the Confidential Information has become public knowledge other than through the fault of you or a person to whom you have disclosed Confidential Information to in accordance with clause 4.3(a) above;

(c) where the Confidential Information was already known to you prior to disclosure to it by Cookdown as can be demonstrated from its written file material or other records and is not the subject of any restriction on disclosure imposed by a third party;

(d) the Confidential Information has been received from a third party who neither acquired it in confidence from Cookdown, nor owed Cookdown a duty of confidence in respect of it; or

(e) as may be required by law, court order or any governmental or regulatory authority.

4.4 You shall not use the Confidential Information for any purpose other than to perform your obligations or exercise your rights under this Agreement.

4.5 This clause 4 shall survive termination of this Agreement, however caused.

5. Payment

5.1 You shall pay the License Fee (if any, as specified in the Order Schedule) when you purchase the Software.  The License Fee shall become non-refundable upon installation of the Software.

5.2 Where you have elected to receive Services and/or Support, Cookdown shall invoice you for the Service Fee and Support Fee on an annual basis in advance.

5.3 You shall pay each invoice submitted by Cookdown:

(a) within 30 days of the date of the invoice; and

(b) in full without deduction or set off and in cleared funds to a bank account nominated in writing by Cookdown, and time for payment shall be of the essence of the Agreement.

5.4 All amounts payable by you under this Agreement are exclusive VAT which shall be chargeable in addition at the then current rate.

5.5 Without limiting any other right or remedy of Cookdown, it reserves the right to charge interest on any overdue sums at the rate of 3% per annum above the base rate of the Bank of England accruing on a daily basis from the date the payment was due until the date of actual payment, whether before or after judgment.  Interest shall be payable on demand.

5.6 Cookdown reserves the right to increase the Service Fee, Support Fee and License Fee.

6. Warranty

6.1 Cookdown warrants that:

(a) the medium on which the Software is stored and distributed is at the time it is supplied, and will be for the period of 90 days thereafter (“Warranty Period”), free from defects in design, material and workmanship under normal use.  If a defect in the medium occurs during the Warranty Period, Cookdown will replace it free of charge if you return it to Cookdown with proof of purchase and (so far as you are able) a documented example of such defect or error;

 (b) except where the Software is Evaluation Software, Preview or Beta Release Software, it will, during the Warranty Period and when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and the Documentation correctly describes the operation of the Software in all material respects;

 (c) it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice; and

 (d) that the Services and Support will be provided with reasonable care and skill subject to you providing reasonable assistance as necessary and otherwise comply with the terms of this Agreement (including payment).

6.2 You acknowledge that the Software is provided on an “as is” basis and that it has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

6.3 Cookdown does not warrant or represent that the running of the Beta Release Software, Preview or Evaluation Software will not be uninterrupted.

6.4 You acknowledge that the Software may not be free of errors or bugs and you agree that the existence of any minor errors (or in the case of Preview or Beta Release Software, any errors at all) shall not constitute a breach of this Agreement.

6.5 If, within the Warranty Period, you notify Cookdown in writing of any defect or fault in Software which is not Evaluation Software, Preview or Beta Release Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Agreement, Cookdown will, at its sole option, repair or replace the Software, provided that you make available all the information that may be necessary to assist Cookdown in resolving the defect or fault, including sufficient information to enable Cookdown to recreate the defect or fault.

6.6 You may have opted to receive Services and Support in which case, subject to the payment of the Service Fee and/or Support Fee as applicable, you will be entitled to receive Services and Support set out in the Order Schedule.

6.7 If you notify us of any bugs and issues that you come across in relation to the Beta Release Software, Evaluation Software or other Software this will assist us in the development of our software.  Please note that the Intellectual Property Rights in any information or ideas communicated to us, unless otherwise agreed in writing, shall belong to us.

7. Liability

7.1 This condition sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:

 (a) any breach of this Agreement however arising

 (b) any use made or resale of the Software or the Documentation by you, or of any product or service incorporating any of the Software or the Documentation; and

 (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

7.2 Subject to condition 7.5, neither party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of income, business profits or contracts, anticipated savings, information, opportunity, goodwill or reputation or  business interruption or damage to or corruption of data (in each of the forgoing cases) whether of a direct or indirect nature nor for any indirect or consequential loss or damage.

7.3 Subject to conditions 7.2 and 7.5 Cookdown’s maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 105% of the License Fee or £10, whichever is the greater.

7.4 Subject to conditions 7.2, 7.3 and 7.5, Cookdown’s liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.

7.5 This Agreement sets out the full extent of Cookdown’s obligations and liabilities in respect of the supply of the Software, Documentation, Services and Support.  In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Cookdown except as specifically stated in this Agreement.  Any condition, warranty, representation or other term concerning the supply of the Software, Documentation, Services and Support 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.

7.6 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or any other thing which cannot be properly excluded by law.

8. Term and Termination

8.1 The License shall commence on the date that the Software is provided to you and shall continue for the Term unless terminated in accordance with clause 8.2.

8.2 Either party may terminate the License immediately on written notice if the other

 (a) commits a material or persistent breach of this License and fails to remedy that breach (if remediable) within 14 days after the service on you of written notice requiring you to do so;

 (b) if either party becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.

8.3 Upon termination of this License for any reason:

 (a) all rights granted to you under the License shall cease;

 (b) you must cease all activities authorised by the License; and

(c) you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to Cookdown (at Cookdown’s option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to Cookdown that you have done so.

8.4 The License shall automatically renew for further period of one year unless written notice is given by either party not less than three months prior to the expiry of the current Term.

9. Transfer of rights and obligations

9.1 You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent.

9.2 Cookdown may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of Cookdown’s rights or obligations arising under it, at any time during the term of the Agreement.

10. Notices

All notices given by you to Cookdown must be given to the postal address given at the head of this Agreement or such other address as notified to you from time to time. Cookdown may give notice to you at either the email or postal address that you provided to it or its representative when purchasing the Software. Notice 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. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

11. Force Majeure

11.1 Cookdown will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Agreement that is caused by a Force Majeure Event.

11.2 A Force Majeure Event includes, but is not limited to means acts, events, omissions or accidents beyond Cookdown’s reasonable control, including but not limited to acts of God, extreme adverse weather conditions or natural disaster, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, nuclear, chemical or biological contamination or sonic boom, compliance with any law, regulation or directive, fire, explosion or accidental damage, failure of plant machinery, machinery, computers or vehicles, any labour dispute, including (but not limited to) strikes, industrial action or lockouts, non-performance by suppliers or subcontractors and interruption or failure of utility or transport service.

12. Waiver

12.1 If Cookdown fails, at any time during the term of this Agreement, to insist upon strict performance of any of your obligations under this Agreement, or if Cookdown fails to exercise any of the rights or remedies to which it is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.  A waiver by Cookdown of any default shall not constitute a waiver of any subsequent default.

12.2 No waiver by Cookdown of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

13. Telemetry Data

13.1 For the purposes of this Agreement “Telemetry Data” shall mean non-personally identifiable information related to the usage of the Software.

13.2 Cookdown may collect Telemetry Data relating to your use of the Software in order to maintain, improve, or analyse the effectiveness of the Software. You acknowledge that Cookdown may freely use any non-personal Telemetry Data that does not identify You or any of your Users and provided that the Telemetry Data is used exclusively by Cookdown and is not at any time to be shared with or used by external third parties.     

13.3 If you have paid a License Fee for the Software then you may optionally disable the sending of Telemetry Data. Instructions on how to disable sending Telemetry Data can be obtained by request to support@cookdown.com. If you are using a free edition of the Software then Cookdown reserves the right to prevent disabling sending Telemetry Data.

14. GDPR

14.1 For the purposes of this Agreement “GDPR” shall mean the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

14.2 Cookdown shall protect Personal Information in accordance with Article 32 of the GDPR.

15. Miscellaneous

Cookdown may reference your name and use your logo and trademarks to indicate that you are a Cookdown customer in its business development and marketing efforts and materials (both printed and online), including without limitation its website.

16. Severability

If any of the terms of this Agreement are determined by any competent authority to be invalid, illegal or unenforceable to any extent, such term, condition or provision will to that extent be deemed deleted and the remaining provisions shall continue in full force and effect.

17. Entire agreement

17.1 This Agreement and any document expressly referred to in it constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of the Software and Documentation.

17.2 The parties each acknowledge that, in entering into this Agreement (and the documents referred to in it), neither of them rely on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.

18. Law and jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English courts.

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