Licence Agreement for EMS/CTMS
It is hereby agreed between the Licensor and the Licensee as follows:
- 。Software means the computer software program(s) customised, developed and licensed by the Licensor to the Licensee, details of which are set out in the[Agreement/Contract/Quotation/PO].
- 。Background IP means all Intellectual Property (as defined below) relating to the Software belonging to the Licensor being licensed to the Licensee under the [Agreement/Contract/Quotation/PO].
- 。Effective Date means the date that the Licensee installs the Software or such other date as stated in the [Agreement/Contract/Quotation/PO].
- 。Foreground IP means any modification, alteration, improvement, enhancement, amendment, addition, extension, upgrade, compilation or other change made to the Background IP by or on behalf of the Licensor during the term of the [Agreement/Contract/Quotation/PO].
- 。Free Trial refers to the Licensor granting to the Licensee and the Licensee accepting a temporary non-exclusive, non-sublicensable and non-transferable licence to download, install, access and use the Software, solely for the purpose of evaluating whether to enter into a formal licence arrangement with the Licensor to license the Software from the Licensor. The Free Trial shall be valid for [thirty (30)] days from the Effective Date, after which it shall automatically expire if the Licensee does not enter into a formal licence arrangement with the Licensor and the Licensee’s access to the Software shall be terminated accordingly.
- 。Intellectual Property means in relation to the Software, all current and future rights in patents, trade marks, service marks, designs, copyright, utility models, design rights, applications for and/or registration of any of the foregoing and the right to apply for them in any part of the world, inventions, drawings, computer programs, source codes, algorithms, improvements, know-how and any and all other intellectual property rights whether registered or unregistered and whether registrable or unregistrable.
- 。The Licensor grants to the Licensee a limited, non-exclusive, non-sublicensable and non-transferable right to install the Software and to use the Software on a mobile device, mobile phone, tablet, workstation or computer system.
- 。No title to or ownership of the Software and Intellectual Property rights associated with, incorporated into or embedded in the Software shall be assigned or transferred to the Licensee.
- 。The Licensee shall not sell, transfer, copy, assign, lease, sub-lease, sub-license, publish, disclose, dispose or otherwise make available the Software in whole or in part and in any form to any third party other than the Licensee’s directors, employees or authorised personnel (“Personnel”), who shall use the Software in the manner set out in Clause 7.2 below.
- 。Proprietary Rights
The Software is exclusively developed and solely owned by the Licensor. The Software is protected by both copyright laws and international copyright treaties as well as by other laws and agreements on intellectual property. Any markings evidencing copyright or other Intellectual Property rights affixed to or incorporated in the Software (if any) may not be changed, removed or obliterated by the Licensee.
- 。Scope of Use
- 。The Licensee may only use the Software in accordance with the terms contained in the [Agreement/Contract/Quotation/PO] and the Terms. The Licensee shall not use the Software for any purpose other than for its intended purpose and functionality.
- 。The Licensee is not allowed to modify, reverse engineer, change, decompile, disassemble or decode the Software in any way.
- 。By accessing and using the Software, the Licensee agrees to abide fully by the Terms and to comply with any other applicable terms and conditions and policies imposed by the Licensor. The Licensee agrees not to use the Software in a manner that:
- commits, abets or encourages a criminal offence or an unlawful, fraudulent or deceptive act;
- violates the rights of any individual or any applicable local, state, national or international law;
- encourages conduct that would constitute a criminal offence, or that gives rise to civil liability;
- discloses any personal or other information which may identify the Licensor or another person;
- is unlawful, libellous, defamatory, obscene, pornographic, indecent, lewd, sexually explicit, suggestive, harassing, threatening, violent, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or which prejudices the Licensor’s interests or relationships with the Licensor’s employees, partners, customers or suppliers;
- impersonates or may impersonate any person or entity or otherwise misrepresents the Licensor’s identity or affiliation with another person or entity;
- 。in the Licensor’s sole discretion is objectionable, restricts or inhibits any other person from using or enjoying the Software or which damages the image or rights of the Licensor, other users or third parties.
The above list is by no means exhaustive and is subject to legal and regulatory updates.
- 。The Software has not been designed or engineered for use as an on-line control equipment in hazardous environments or under conditions where its failure-free operation is required.
- 。The Licensor reserves the right to discontinue, modify, enhance or improve (whether temporarily or permanently), the Software or any features or parts of the Software at any time and in the Licensor’s sole discretion. No prior specific notice will be given to the Licensee and any changes or revisions will be effective once they are incorporated into the Software.
- TESTING AND ACEPTANCE
- 。Within [thirty (30) days] from the date of the [Agreement/Contract/Quotation/PO], the Licensee shall submit to the Licensor:
- 。test data suitable to assess whether the Software operates in accordance with the specifications as requested by the Licensee, the details of which are set out in the [Agreement/Contract/Quotation/PO]; an
- 。the results it expects to obtain from the operation of the Software on such test data.
- 。The Licensor shall within [fourteen (14)] days of receipt of the test data and expected results either reject or approve the same. The Licensor shall only be entitled to reject the test data and/or expected results upon the basis that (and by detailing the manner in which) the test data and/or expected results does not reasonably conform with the requirements of the Licensee, as stated in the [Agreement/Contract/Quotation/PO]. The Licensor shall be deemed to approve the test data and expected results if it neither approves nor rejects them within the said time period.
- 。The Licensee shall upon receipt of a rejection by the Licensor pursuant to Clause 3.2 above make such alterations to the test data and/or expected results as shall in the circumstances be necessary and shall resubmit the same for approval by the Licensor. The provisions of Clause 3.2 above and this Clause 3.3 shall apply with the appropriate changes until such time as the Licensor shall approve (or be deemed to approve) the test data and expected results.
- 。The Licensee shall implement acceptance tests upon the approval (deemed or express) by the Licensor of the test data and expected results pursuant to Clause 3.2 above (the “Acceptance Tests”).
- 。Upon delivery of the completed Software by the Licensor to the Licensee, the Licensee shall conduct the Acceptance Tests and communicate any failure of the Acceptance Tests to the Licensor within [thirty (30) days] of receipt of the completed Software. If the Licensee fails to do so upon the expiry of such time period, the Software shall be deemed to have passed the Acceptance Tests. The Licensee shall accept (and in default shall be deemed to accept) the Software upon the date that they pass or deemed to have passed the Acceptance Tests.
- 。If the Software fails the Acceptance Tests and the Licensee informs such failure to the Licensor within the thirty (30) day period, the Licensee shall set out the manner in which the Software fails the Acceptance Tests. The Licensor shall implement free of charge such alterations or modifications to the Software as it shall in the circumstances reasonably judge necessary. The Licensee shall implement a repetition of the Acceptance Tests of the altered or modified Software from the Licensor (the “First Repeat Acceptance Test”) and communicate any failure of the altered or modified Software to the Licensor within [fourteen (14)] days of receiving the altered or modified Software. If the Licensee fails to do so upon the expiry of such period, the Software shall be deemed to have passed the First Repeat Acceptance Tests.
- 。If the Software fails the First Repeat Acceptance Test, the Licensee may at its option:
- 。by written notice set out the manner in which the Software does not pass the First Repeat Acceptance Test and require the Licensor to forthwith implement such further alterations or modifications to the Software free of charge as the Licensor shall reasonably judge necessary to enable the Software to pass the First Repeat Acceptance Test; or
- 。reject the Software subject to such refund of the fees paid by the Licensee to the Licensor for the development and license of the Software in accordance with the [Agreement/Contract/Quotation/PO].
The Licensor shall provide the Licensee with such assistance and advice as it shall from time to time reasonably require in the process of testing the Software pursuant to this Clause 3.
3.FUTURE COLLABORATION AND JOINT IP
- 。In the event that the Licensor and the Licensee collaborate to further research, develop and modify the Software according to the specific needs of the Licensee and to commercialise and exploit any new ideas, discoveries, creations, technology, works, designs, methods, modifications, processes, formulae or techniques produced or developed using the Background IP and/or Foreground IP (the “Collaboration”), the intellectual property rights created in the course of the Collaboration shall be referred to as “Joint IP”.
- 。Unless otherwise agreed between the Parties, both Parties shall not have the right to assign, transfer, license or in any other way deal with the Joint IP under this Clause 4, or use the Joint IP for the benefit of any third party.
- 。The Licensee shall not have the right to assign, transfer, license or in any other way deal with the rights extended to it under this Clause 3, or use the Background IP of the Licensor for the benefit of any third party.
- 。Any prior research and collaboration arrangement or activity existing between the Licensor or Licensee and any other third party as of the Effective Date shall continue and remain unaffected by the Terms.
4.INTELLECTUAL PROPERTY RIGHTS
- 。The Licensor may disclose to the Licensee any Foreground IP created or developed during the term of the [Agreement/Contract/Quotation/PO]. Subject to the Licensor’s consent, the Licensee may use the Foreground IP in the same manner and subject to the same terms contained in the Terms.
- 。The ownership of the Intellectual Property,(including both Background IP and Foreground IP) remains vested in the Licensor at all material times. The Licensee shall not at any time acquire, directly or indirectly, any right, title or interest in any of the Intellectual Property, Background IP or Foreground IP of the Licensor, except for such rights of licence which are expressly conferred under the terms of the [Agreement/Contract/Quotation/PO] and/or the Terms.
- 。The Licensor may assign, transfer or otherwise dispose of any right it may have in respect of its own Intellectual Property, Background IP or Foreground IP to a third party, provided the third party accepting such assignment, transfer or disposal undertakes in favour of the Licensee to be bound by and to give full force and effect to any right or licence that has been extended by the Licensor in favour of the Licensee for the use of the Intellectual Property, Background IP or Foreground IP as contemplated under the [Agreement/Contract/Quotation/PO] and/or the Terms.
- 。The Licensee further undertakes not to assist any third party in any claim to the Intellectual Property, Background IP or Foreground IP of the Licensor or do or permit to be done any act which is directly or indirectly likely to prejudice the right, title or interest of the Licensor or the Intellectual Property, Background IP or Foreground IP of the Licensor.
- 。The Licensee shall not have the right to disclose information relating to or assign, transfer or license rights to the Intellectual Property, Background IP or Foreground IP vested or conferred to it under the Terms to any third party without the prior written consent of the Licensor.
- 。Neither the Licensor nor the Licensee shall have the unfettered right to use or exploit the Joint IP for its own purposes or for the benefit of any third party, except with the prior written consent of the other party. The Joint IP may only be used, dealt with, commercialised or exploited by the Licensor and the Licensee as part of the Collaboration or in accordance with the mutual agreement of the Licensor and Licensee in writing.
- 。The Licensor and the Licensee shall jointly decide whether any application for registration of any Joint IP is to be made in any part of the world. Where the Licensor and the Licensee jointly decide to apply for the registration of any Joint IP, all applications shall be made in the joint names of the Licensor and Licensee, unless otherwise agreed between the Licensor and the Licensee in writing. All costs incurred in the filing, registration and prosecution of the Joint IP shall be borne by the Licensor and the Licensee equally. Each party shall render all assistance in the filing, registration and prosecution of the Joint IP and shall take all necessary steps to cooperate with each other in the registration and maintenance of such Joint IP.
- 。In the event that either the Licensor or the Licensee does not wish to register the Joint IP, the party that wishes to register the Joint IP shall bear the costs of filing, prosecuting and maintaining any application or grant made pursuant to the application for the registration of the Joint IP. The party that does not wish to register the Joint IP shall be deemed to have assigned its rights to the Joint IP to the other party, and the ownership of and rights to the Joint IP shall belong solely to the party that registers the Joint IP.
5.NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
- 。In the course of using the Software, the Licensee shall not infringe any Intellectual Property rights of the Licensor or any third party. Where necessary, the Licensor may in its sole discretion and without notice to the Licensee remove any material on the Software it reasonably believes is in breach of any of the intellectual property rights of any third party and reserves the right to immediately suspend or terminate the Licensee’s use of the Software should the Licensee submit any such infringing material.
6.Notification of Infringement
If the Licensor believes that any of the materials the Licensor owns or controls is being infringed or has been infringed as a result of the Licensee’s use of the Software, the Licensor may file a notification of the alleged infringement (the “Notification”) by sending to the Licensee an e-mail containing the following information:
- 。identify the material that is believed to be infringing and provide to the Licensee a copy of the location of the alleged infringing material or any other relevant information that will allow the Licensee to locate the infringing material on the Software; and
- 。identify the material the Licensor owns or controls that the Licensor believes to be infringed by describing the infringed material and providing adequate supporting materials evidencing such infringement.
7.Consequences of Infringement
In the event that it is determined that the Licensee is infringing the Intellectual Property rights of the Licensor or any third party, the Licensor reserves the right to and shall in its sole discretion, limit, suspend or terminate the Licensee’s licence to access and use the Software and to block or prevent the Licensee’s future access to and use of the Software.
In particular, should the Licensor determine that the Licensee has committed infringements on repeated occasions, the Licensor shall be entitled to terminate the Licensee’s licence to access and use the Software without further notice.
The Licensee agrees to indemnify and keep indemnified the Licensor, its affiliates, directors, officers, employees, independent contractors, service providers and consultants from and against all and any losses, damages, actions, proceedings, costs, claims, demands, liabilities which may be suffered or incurred by the Licensee arising out of or related to any or all of the following:
- 。the Licensee’s infringement or alleged infringement of the Intellectual Property, Background IP and/or Foreground IP;
- 。the Licensee’s access to and use of the Software;
- 。any content, information, materials or data the Licensee may use in connection with the Software;
- 。the Licensee’s breach of any term under the [Agreement/Contract/Quotation/PO] and the Terms;
- 。the Licensee’s violation of any rights of a third party or another user of the Software; or
- the Licensee’s violation of any laws or regulations in connection with the use of the Software.
10.TERM AND TERMINATION
The Terms shall be valid and effective on the Effective Date and shall continue in effect unless terminated:
- 。upon the termination of the [Agreement/Contract/Quotation/PO]; or
- 。otherwise in accordance with Clause 7.2 below.
12.Right to Terminate
The Licensor may terminate the Terms immediately by notice in writing to the Licensee if the Licensee:
- 。commits any material breach of any term contained in the Terms and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty (30) days of a written request to remedy the same;
- 。enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of a solvent amalgamation or reconstruction);
- 。becomes insolvent;
- 。ceases or threatens to cease to carry on business;
- 。compounds or makes any voluntary arrangement with its creditors;
- 。is the subject of a notice of appointment of an administrator, or notice of intention to appoint an administrator or liquidator;
- 。is unable to pay its debts as they fall due; or
- 。has an encumbrancer take possession of, or a receiver or administrative receiver appointed over, all of any part of its assets.
13.Effect of Termination
- 。Immediately upon the termination of the Terms, the Licensee shall no longer be permitted to use the Software and shall return to the Licensor the Software and all copies thereof in the form provided by the Licensor or as modified, or upon the Licensor’s request, uninstall and delete the Software and all copies, and certify in writing that the Licensee has complied with its obligations as aforesaid.
- 。Upon the termination of the Terms, any Joint IP developed as a result of the Collaboration shall be the property of the Licensor, subject to Clauses 5.7 and 5.8 above.
- 。The Licensee shall at all times keep confidential the Software and any information which is proprietary and confidential to the Licensor, including but not limited to the Terms, information concerning or relating in any way whatsoever to any Intellectual Property, trade secrets, confidential operations, processes, systems or inventions carried on or used by the Licensor, any information concerning the organisation, business, finances, transactions or affairs of the Licensor, dealings of the Licensor, secret or confidential information which relates to the business of the Licensor or any of its principals, clients or customer transactions or affairs, the Licensor’s technology, designs, documentation information, customer lists, drawings, notes, memoranda and the information contained therein, any information therein in respect of trade secrets, technology and technical or other information relating to the development, analysis, marketing, sale or supply, or proposed development, analysis, marketing, sale or supply, of any product or service by the Licensor; and information and material which is either marked confidential or is by its nature intended to be exclusively for the knowledge of the recipient alone (“Confidential Information”).
- 。Nothing contained in this Clause 8 shall prevent the Licensee from disclosing such Confidential Information on a need-to-know basis to its Personnel, provided that such disclosure shall be made in confidence and further provided that recipients are bound to observe similar obligations of confidentiality. Any breach of the confidentiality obligations by the Licensee’s officers, employees and/or consultants shall be deemed a material breach by the Licensee.
- 。In the event that the Licensee is in breach of this Clause 8, the Licensee shall indemnify the and keep the Licensor harmless from any and all claims, losses, damages, costs, expenses and deficiencies including legal fees suffered, incurred or sustained by the Licensor and in consequence of or in relation to any breaches of this Clause 8.
- The obligations contained in this Clause 8 shall remain in full force and binding on the Licensee and its successors and assigns even after the termination of the Terms according to Clause 7 above.
15.LIMITED WARRANTY AND DISCLAIMER
The Licensor provides the Software “as is” and makes no other warranties, written or oral, express or implied, and all other warranties are specifically excluded, including, but not limited to the implied warranty or merchantability, fitness for a particular purpose or non-infringement and any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.
The Licensee acknowledges that the current state of technology does not allow the Software to be engineered to such perfection that it would at all times perform and function faultlessly in all systems and applications and that the Software has not been designed for use under certain conditions where failure-free operation is required.
3.LIMITATION OF LIABILITY
- 。The following provisions set out the Licensor’s entire liability to the Licensee under the Terms in respect of:
- 。any material breach of its contractual obligations arising under the Terms; and
- 。any representation, statement or tortious act or omission including negligence and/or fraudulence arising under or in connection with the Terms.
- 。The Licensor’s total liability to the Licensee under the Terms in relation to Clause 10.1 above shall be limited to damages of an amount equal to the lesser of:
- 。the aggregate of the total monies paid by the Licensee to the Licensor for the licensing of the Software in the twelve (12) months preceding the occurrence of the subject matter giving rise to the claim; or
- 。Singapore Dollars [∙] (SGD [∙]).
- 。Any claim against the Licensor shall be submitted within thirty (30) days after the subject matter giving rise to the claim has arisen, failing which any such claim will be void.
- 。Notwithstanding anything else in the Terms or otherwise and to the extent allowed by applicable law, the Licensor will not be liable to the Licensee for:
- 。any indirect, incidental, special or consequential damages or losses, lost profits or lost data whether arising in an action of contract, tort or other legal theory, even if such loss was reasonably foreseeable and the Licensor was or should have been aware or advised of the possibility thereof; or
- 。cost of procurement of substitute goods, technology or services.
- 。Nothing in this clause shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.
16.PERSONAL DATA PROTECTION
- 。Under the Singapore Personal Data Protection Act 2012, “Personal Data” refers to any data, whether true or not, about an individual who can be identified from the data or other information to which the organisation has or is likely to have access.
- 。Some functions of the Software may require the Licensor to collect, use and disclose the Licensee’s personal data and information. Such personal data may include information that the Licensee provides to the Licensor throughout the course of its dealings with the Licensor. By providing the Licensee’s personal information to the Licensor, the Licensee agrees and consents to the Licensor collecting, using, disclosing and/or processing its personal data.
- 。From time to time, the Licensor may also use the Licensee’s personal data and information to send to the Licensee promotional and marketing materials to inform the Licensee about new products and/or services that the Licensor
- 。The Licensee undertakes to comply with all laws and regulations relating to the collection, use, and disclosure of Personal Data in the course of using the Software.
The technical support and maintenance of the Software shall be exclusively governed by the provisions of the [Agreement/Contract/Quotation/PO] or a separate service agreement (if applicable).
- 。Export Control Regulations
The Software delivered may embody such technologies and/or software as are subject to export control regulations of Singapore and/or of those countries to which these products are delivered or where they are used. The Licensee undertakes to comply with such applicable laws and regulations.
- 。Third-party Software Licences
The Software may, in certain circumstances, incorporate third-party software, such that, notwithstanding the above provisions, portions of the Software may be covered by third-party software licences. Copyright and licensing details concerning such third-party software, if any, are provided in the installation index contained in the Software.
- 。Governing Law
The Terms shall be governed by and construed in accordance with the laws of the Republic of Singapore.
- 。Dispute Resolution
The Licensor and the Licensee agree to submit to the non-exclusive jurisdiction of the courts of Singapore.
- 。Entire Agreement
The Licensee acknowledges that it has read and understood the Terms and agrees to be bound by the terms contained herein. The Terms may be modified or altered by the Licensor from time to time, the prevailing version of which shall be binding on the Licensee.
- 。Invalid Provisions
Should any provision of the Terms be invalid or unenforceable, the legal effectiveness of the remaining terms and conditions as such shall not be affected. Any such invalid or unenforceable provision shall be substituted by a statutory or contractual provision which achieves the intended legal and commercial objective to the greatest extent possible.
All notices required or permitted under the Terms shall be in writing and shall be deemed delivered when delivered in person, transmitted by facsimile, or deposited in the mail service (postage prepaid, via registered or certified mail), addressed to the Licensor or to the Licensee at their principal place of business.
- 。Force Majeure
Neither the Licensor nor Licensee shall be liable for any act, omission, or failure to fulfil its obligations under the Terms if such act, omission or failure arises from any event or cause reasonably beyond its control.
- 。Third Party Rights
No third party shall have the right to enforce any provision of the Terms under the Contracts (Rights of Third Parties) Act (Chapter 53B).