1.1 AGREED TERMS
The definitions and rules of interpretation in this Article apply in this Agreement unless the context otherwise requires.
Articles, Clauses, Schedule and Paragraph headings shall not affect the interpretation of this Agreement
1.2 Affiliate: means in relation to either party, each and any subsidiary or holding company of that party or any business entity from time to time controlling, controlled by, or under common control with, either party;
1.3 Add On: means an additional package provided to the Subscriber that shall not be inclusive in the Software Package nor any update. This “Add On” shall be invoiced as an additional fee upon a mutual agreement of the Parties
1.4 Claim: has the meaning given to that term within Article No 5 & 7
1.5 Design: means “CASENGINE”, as in accordance to the package selected within Schedule No 1;
1.6 Execution of this Agreement: This Agreement may be executed in any number of counterparts each of which is an original and which together have the same effect as if each party to this Agreement had signed the same document;
1.7 The Parties agree that this Agreement may be exchanged by fax or via email and that each copy of the fax or email (as the case may be) upon exchange shall constitute an original counterpart of this Agreement;
1.8 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the appendices of this Agreement, the provisions in the body of this Agreement shall take precedence;
1.9 Fee: means the consideration proposed for the licensing of the software package
1.10 Gregorian calendar: All dates and periods shall be determined by reference to the Gregorian calendar;
1.11 Intellectual Property Rights: has the meaning given to that term in Article No 7, as well as all rights and interests in all (a) patents, utility models, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know-how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether or not patentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing.
1.12 Interpretation: 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, description, definition, phrase or term preceding those terms;
1.13 Headings: Headings are for convenience only and do not form part of this Agreement or affect its interpretation;
1.14 Laws: A reference to any law or provision of a law shall apply to any amendments to the law that shall be amended, extended or re-enacted from time to time;
1.15 License: has the meaning given to that term within Article No 2;
1.16 New Release & Maintenance Update: means an update of the Software Package that shall modify, amend or improve any faults within the current Software Package that shall preclude the requirement for the new implementation of the system;
1.17 Plurals and Genders: The singular includes the plural and the plural includes the singular. One gender includes each other gender;
1.18 Software Package: shall mean the software product(s) as detailed within Schedule No 1;
1.19 Schedules: The following Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement include the Schedules:
-Schedule No 1: Service Level Agreement
1.20 Subscriber: means the entity (typically a law firm or legal department) which purchases the Software Package.
1.21 Term: has the meaning given to that term in Article No 11;
2.1 In consideration of the fee to be advanced by the Subscriber to Code Engines pursuant to Article No 3, Code Engines shall permit to the Subscriber a continuous and perpetual, non-sublicensable and non-transferrable license to access and use the Software Package uniquely for its commercial purposes and in the mode envisaged within this License, (herein after referred to as the Agreement) in accordance with Schedule No 1. This license shall be non-exclusive and may be revocable at any time in accordance with the terms of this Agreement.
2.2 For sake of clarity, the Subscriber hereby agrees to refrain from the following actions:
– To consent or to accept for the Software Package to become the substance of any charge, lien or encumbrance; or
– To sub-license the Software Package or transfer the License to a third party;
– To deal with the Software Package in a custom that shall exceed the Subscriber s rights and privileges under this Agreement;
– To reverse-engineer, modify, amend, enhance, develop, or commercially exploit the Software Package in contravention to this Agreement;
2.3 Obligations of the Subscriber (The Second Party):
2.4 To notify Code Engines immediately upon notice of any unsanctioned or unauthorized use of the Software Package by any person or entity;
2.5 To implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify Code Engines upon suspicion that a Username or password has been lost, stolen, compromised, or misused
2.6 To keep a complete, accurate and truthful record of documentation of the Subscriber’s replication and disclosure of the Software Package and if requested by Code Engines, to advance the relevant documentation to the Code Engines within a reasonable period of time.
2.7 If the Subscriber displays any intentional misuse of the Software Package or any breach of any obligation under this Agreement in relation to the use of the Software Package, then the Subscriber shall be deemed to have committed a material breach of this Agreement and Code Engines shall, at its sole discretion, require the Subscriber to comply with the penalty as in accordance to Schedule No 2, or shall duly terminate this Agreement in accordance with Article No 5. Provided that such a material breach has to be properly documented by Code Engines and a written report has to be sent to the Subscriber, within three (3) working days from the inspection, providing specific reasons as to why Code Engines believes that a material breach of the Agreement has taken place.
2.8 Code Engines shall provide the Subscriber with all Maintenance & Safeguarding provisions within twenty-four (24) hours or as soon as practicably possible upon release at no charge the Subscriber.
3.1 Code Engines shall, in accordance with the terms of this Agreement, provide necessary technology-related implementation services required for the initial technological set-up of the software.
4 MAINTENANCE TRAINING
4.1 Code Engines agrees that at the time of the initial technological set-up it shall, provide the Subscriber with the following training-
– One (1) hour training per end user of the software.
– Subscriber’s IT employees (Maximum of two (2)) under the following maintenance training as follows-
5 CODE ENGINES FURTHER COMMITMENTS
5.1 In accordance with Schedule No 3 any defects or faults in the Software Package that adversely affect the procedure and operative works of the Software Package, shall be remedied by Code Engines to ensure the continued operation of the Software Package without any interruption as per the Service Level Agreement (SLA).
6 CODE ENGINES REPRESENTATION
6.1 Code Engines represents that it is not aware of any restriction, legal or otherwise, or agreement with any Third Party, which would prevent it from entering into this Agreement; it holds all necessary licenses and permits entitling it to duly conduct the services; it has obtained all the necessary insurance policies under this agreement; all of its staff, employees, consultants or agents engaged or to be engaged in the services are duly qualified and experienced to provide the services; and the provision of the services hereunder shall not cause a conflict with any of its duties or obligations to any Third Party.
6.2 All other conditions or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute or other applicable law, 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.
6.3 The Subscriber must provide all the information that may be necessary to assist Code Engines in resolving a defect or fault within the software, including a documented example of any defect or fault, or sufficient information to enable Code Engines to re-create the defect or fault.
6.4 Code Engines does not state, represent or assert that the use of the software shall be uninterrupted or error-free. Any defect or fault within the software in consequence of which it fails to conform in all material respects to the specification, will be remedied by Code Engines in accordance with Article No 2.8.
7 PROBLEM REPORTING AND ENHANCEMENT REQUESTING PROCEDURE
7.1 Code Engines shall provide an internal support service, which shall be staffed by technically qualified individuals (“Internal Support Service”). The Internal Support Service shall be responsible for using reasonable efforts to clearly identify any problem in the Software Package as reported by the Subscriber, ensuring that the problem is not being caused by <strong>Code Engines-specific hardware, network, operating system, middleware, or software problems, or by improper use.
7.2 The Internal Support Service shall be the primary interface to the Subscriber in the context of this Agreement.
7.3 Code Engines shall maintain its Internal Support Service with a dedicated telephone number and email address through which the Subscriber could register all problems experienced (including faults) or request assistance or advice on the Software Package during support hours.
8.1 3.1 The agreed fee payable for license of the Software Package is specified in Schedule 2 of this Agreement. All applicable taxes – including the VAT prevalent at the time of payment shall be payable by the Subscriber.
8.2 Code Engines shall, in accordance with Schedule No 2, issue an invoice to the Subscriber for the Software Package provided.
8.3 Code Engines shall have the right to increase the fees as defined within Schedule No 2 upon the completion of twelve (12) months of the initial date of signing this Agreement and provide the Subscriber with ninety (90) days written notice prior to the relevant fee increase, where after the expiry of such ninety (90) days period the increase in fees shall be implemented provided that the Subscriber has not terminated the Agreement.
8.4 Additional services that may fall outside the scope of work as set out in Article No 2.1 and 2.3.1 shall be determined as additional services and shall be invoiced according to the rates as set out in Schedule No 2.
8.5 In the event that the Subscriber shall default and fails to make the due payment under this Agreement by the due date of payment in accordance to Schedule No 2, this Agreement shall be deemed to be terminated in accordance with Article No
9.1 Each Party shall during the term of this Agreement and thereafter shall comply with this Confidential Information clause as follows- “Confidential Information” includes, but is not limited to, all information of a confidential nature furnished by one Party to the other Party including but not limited to: the Software Package, all analysis, software source, library and object codes, copyright material and manuals, trademarks and other intellectual property rights, specifications, training material and know-how relating to the Software Package, documentation and information relating to third parties or potential or existing customers, data, lists, plans, formulae, customer lists, business, operations, administration, price-sensitive information and policies, strategies, technical and financial information, information and data uploaded by Subscriber’s customers on the Software Package, documentation and the existence of this project. Confidential Information does not include information which:
– is or becomes publicly available through no breach of this Agreement or any other confidentiality obligation;
– is required to be disclosed by law;
– is required to be disclosed by a regulator with authority over Licensee;
– is or becomes available to a Party from a third party which is lawfully in possession of that information and who has the lawful power to disclose such information to that Party on a non-confidential basis; or
– is lawfully known by a Party prior to the date of its disclosure to that Party.
9.2 A Party receiving Confidential Information (“Receiving Party”) from the disclosing Party (“Disclosing Party”) shall hold Disclosing Party’s Confidential Information as absolutely secret and in the strictest confidence and shall not at any time use the Confidential Information for its own benefit, or the benefits of any other party or for commercial gain except for the purpose of achieving or furthering the transactions contemplated under this Agreement or as permitted under this Agreement. Each Party shall not disclose, or permit to be disclosed, any Confidential Information to any third party.
9.3 Each Party may disclose the Confidential Information to its respective affiliates, employees, Users, contractors, advisers or officers (“Employees”) on a need-to-know basis and only to the extent necessary for each of them to perform its/his/her duties for the purpose of achieving or furthering the transactions contemplated under this Agreement or as permitted under this Agreement.
9.4 Each Party shall procure that its respective Employees, who may have access to the Confidential Information, comply with the terms and obligations of this Agreement as if each were a Party hereto. Each Party agrees to bear full responsibility in the event of a breach of the terms and obligations of this Agreement by any of their respective Employees and shall inform the other Party of such breach immediately.
9.5 All documents, records and other materials of every kind pertaining to a Party’s Confidential Information shall be and remain the exclusive property of Disclosing Party at all times. Disclosing Party may, at any time, request the prompt return of all such documents, records and materials and their copies which are in Receiving Party’s possession or under its control.
9.6 All rights, title and interest in Disclosing Party’s Confidential Information and intellectual property shall remain with the Disclosing Party. No license other than granted under Article No 2 of this Agreement, whether express or implied, in the Confidential Information is granted to Receiving Party other than to use Disclosing Party’s Confidential Information as permitted under this Agreement.
10.1 Subject to Article No 6, no Party shall create, or permit any person to make, any public announcement regarding this Agreement without the prior written consent of the other party, with the exception of the following-
– so as to prevent Code Engines in any business in which it may be lawfully engaged after the Agreement has terminated;
– information or knowledge which has come into the public domain without fault on the part of the other Party;
– as a result of a competent court or other regulatory body’s order; or
– To permit Code Engines to publishing the Subscriber’s logo on their website;
11 DURATION & TERMINATION
11.1 This Agreement shall commence upon the XXX and shall be perpetually valid (“TERM”) until it is terminated in accordance with the provisions of this Agreement.
– In the event that the Subscriber shall not advance the written termination notice as mentioned in Article No 11, the Subscriber shall be deemed to have entered into all obligations in accordance to the terms & conditions as set out in this Agreement, and shall be applicable for the fees stipulated under Schedule 1 of this Agreement.
11.2 Code Engines may, by providing an advance written notice of ten (10) calendar days, terminate this Agreement, without compensation to the Subscriber and without prejudice to any rights or claims the Subscriber may have against Code Engines, pursuant to this Agreement or otherwise if:
– The Subscriber commits a breach deemed by Code Engines to be a material breach of or is responsible for any material non-performance of any of the stipulations contained in this Agreement, or in the case of a breach capable of remedy, if such breach has not been remedied by the Subscriber within ten (10) working days of receipt of written notice from Code Engines specifying the breach and requiring its remedy;
– makes any voluntary arrangement with its creditors; passes a resolution for winding up (other than for the purposes of a solvent amalgamation, reconstruction or restructuring) or a court makes an order to that effect;
– becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors;
– has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or a creditor takes possession, or a receiver is appointed over any of the property or assets of the Subscriber;
– the Subscriber or any of its directors, employees, agents or sub-contractors commits any act of fraud, negligence or wilful misconduct in the performance of the services, which has been proved by a court of law;
– the fees payable by the Subscriber has been outstanding for more than sixty (60) days.
11.3 In the event that either Party may seek to terminate this Agreement at any time without having to state a reason therefore, and subject to sixty (60) days’ advance written notice to the other Party and any termination of this Agreement shall be without prejudice to the rights of either Party (including costs and fees incurred by Code Engines) which may have accrued up to the effective date of the termination. Code Engines shall submit to the Subscriber originals of all receipts and invoices in support of payment as may be reasonably requested by the Subscriber.
11.4 Upon termination of this Agreement for whatever reason, Code Engines shall deliver to the Subscriber all books, documents, papers, materials, reports (including copies), computer disks, the Data and other property relating to the business of the Subscriber which may then be in its possession or under its power or control.
12 LIMITS OF LIABILITY
12.1 Code Engines shall not in any circumstance have any liability for any indirect or consequential losses or damages which may be suffered by the Subscriber and/or towards third parties arising out of or in connection with the performance of the Services under this Agreement (including loss of profits, loss of anticipated savings, loss of business opportunity, loss of goodwill and loss of or corruption of data), irrespective of whether the cause of action arises under contract, in tort (including negligence), under law or otherwise.
12.2 The total liability of Code Engines for indirect damages suffered by the Subscriber in connection with this Agreement, howsoever arising, whether for breach of contract, in tort (including negligence) or under law, shall in no circumstances exceed a sum equal to the Annual Fee for the twelve (12)-month period prior to the event giving rise to the cause of action or the insurance cover as per the implemented insurance policy.
12.3 Code Engines shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of Code Engines (a “Force Majeure Event”).
13 INTELLECTUAL PROPERTY
13.1 The Subscriber acknowledges that all Intellectual Property Rights in the Software shall belong to Code Engines and the Subscriber shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement (including within the scope of the License in Article No 1).
13.2 If, at any time during this Agreement, the Subscriber (either alone or with others) creates or produces any work in any medium whatsoever including, without limitation, any deliverables, any computer program, electronic data, schematic, document, report, or photograph and whether in two or three dimensions or in hard copy or electronic form, which relates to this Agreement or in connection with the Services (the “Works”), then all Intellectual Property in and to such Works shall belong to and be the sole legal and beneficial property of, and will be considered confidential information of, Code Engines, except as restricted by local requirements.
13.3 The Subscriber shall not at any time during the Term of this Agreement or afterwards do or omit to do or permit to be done any act or thing which may:
– impair or adversely affect the rights of Code Engines in the Works or in the Intellectual Property in relation to the Works or as otherwise granted under this Agreement;
– Invalidate any registration held by Code Engines in respect of the Works;
– bring any of the Works or the Intellectual Property in the Works into disrepute; or
– damage the goodwill attaching to the Works or the Intellectual Property in the Works.
13.4 If the Subscriber shall become aware of any unauthorised use of any of the Works or any Intellectual Property in relation to the Works or otherwise or becomes aware that any other person or company alleges that any use of the Works or the Intellectual Property in the Works infringes the rights of another party, the Subscriber shall promptly notify Code Engines in writing.
13.5 In the event that a Third Party alleges that the possession or use of the Software (or any part thereof) by the Subscriber in accordance with the terms of this Agreement infringes the Intellectual Property Rights of that Third Party (“Claim”), Code Engines may either:
– at its own expense, defend the Subscriber against the “Claim”; and
– comply with Article No 9
13.6 For the avoidance of doubt, this Article No 7.6 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Subscriber other than in accordance with the terms of this License (including by modifying the Software), use of the Software in combination with any hardware, software or application not supplied or specified by the Supplier (including Third Party software) if the infringement would have been avoided by the use of the Software not so modified or combined (as applicable), or use of a non-current release of the Software.
13.7 If any Third Party makes a Claim, or notifies an intention to make a Claim against the Subscriber, the Subscriber must:
– as soon as reasonably practicable, advance written notice of the Claim to Code Engines, specifying the nature of the Claim in reasonable detail;
– refrain from any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Code Engines (which consent may be withheld at the absolute discretion of Code Engines); and
– give Code Engines 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 Subscriber, so as to enable Code Engines and its professional advisers to examine them and to take copies (at the Subscriber’s expense) for the purpose of assessing the Claim.
– The Subscriber shall, at the request and expense of Code Engines, take all reasonable steps and execute any documents necessary or desired by Code Engines to enable Code Engines to obtain, exercise, register or record any statutory rights and protection in respect of the Intellectual Property in relation to the Works, including, without limitation, rights in patents, trademarks, designs and copyright.
13.8 Any claim, allegation, action or proceeding relating to the Works or the Intellectual Property in relation to the works shall be in the name of Code Engines and Code Engines shall have all rights to take action and control/oversee the conduct of all proceedings relating to the Works or the Intellectual Property in the Works.
13.9 The Subscriber shall upon the request of Code Engines provide full cooperation to Code Engines in any action or proceedings brought or threatened in respect of the works or the Intellectual Property in the works and Code Engines shall meet any reasonable out of pocket expenses incurred by the Subscriber to Third Parties in giving such assistance.
13.10 Nothing contained within this Agreement constitutes a grant or creates in favour of the Subscriber any goodwill or proprietary right in or in relation to the Intellectual Property owned by Code Engines or otherwise granted to Code Engines in accordance with this Agreement.
13.11 The Subscriber agrees to use Code Engines’ Intellectual Property rights in good faith and in such a manner as to enhance and promote the goodwill and reputation of Code Engines. The Subscriber agrees not to use Code Engines’ Intellectual Property in association with any other event or activity which affects or is likely to affect adversely or detrimentally the goodwill and reputation of Code Engines and not to do any act or engage in any conduct which does or may be likely to have such an adverse effect.
13.12 The Subscriber agrees immediately upon termination of this Agreement to cease to use all Intellectual Property owned or otherwise granted by Code Engines in accordance with this Agreement and, at Code Engines written request, to deliver up or destroy all information, data, documents, drawings, photographs, copies, works and other materials or data of any kind which contain, refer to or are derived from the works or any of the Intellectual Property in the works.
13.13 The parties agree to abide by the confidentiality and Data protection in accordance with schedule No. 1 and as listed in website terms and conditions
14 MISCELLANEOUS NO WAIVER
14.1 If there is a breach or threatened breach of any provision of this Agreement, it is agreed and understood that such breach may result in irreparable prejudice to the Parties and that the Parties shall be entitled to injunctive relief; provided however, no specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement. Any failure or delay in exercising any of the Parties’ rights within this Agreement shall not constitute a waiver of any such rights unless expressly waived by notice in writing.
15.1 Except as expressly provided within 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
16.1 This Agreement together with any other documents (Schedules)referred to within in this Agreement constitutes the entire Agreement and understanding between the parties relating to the subject matter and shall supersede any other agreements, cancel all prior agreements, statements, representations, understandings, negotiations and discussions, both oral and written between the Subscriber and Code Engines (other than those expressly referred to herein). In the event of a conflict between this Agreement and the Scope of Services, this Agreement shall prevail and apply, unless otherwise indicated by the Subscriber in writing. Each of the Parties acknowledges and agrees that upon entering into this Agreement each Party shall be precluded from relying on any statement, representation, warranty or understanding made prior to this Agreement save to the extent that such statement, representation, warranty or understanding is incorporated into this Agreement.
17.1 No variation of this Agreement shall be effective and binding unless it is in writing and signed by the parties (or their authorized representatives). as an Addendum to this Agreement.
18 ASSIGNMENT AND NOVATION
18.1 The Subscriber shall not assign any of its rights under this Agreement or sub-contract the whole or any part of the performance of the services or any of its obligations under the Agreement without the prior written consent of Code Engines and upon the Subscriber agreeing in writing the identity of the person or entity to whom the performance of all or part of the services is proposed to be assigned or sub-contracted. Any attempted assignment of this Agreement in violation of this section shall be deemed void. A breach of this Article by the Subscriber shall entitle Code Engines to terminate this Agreement and seek damages from the Subscriber. Code Engines shall be reasonable to accept the assignment in the case of merge and acquisition.
19.1 Nothing within this Agreement shall create a joint venture, relationship of partnership, employer-employee relationship between the parties. Accordingly, except as expressly authorized under this Agreement neither party has authority to pledge the credit of or make any representation or give any authority to contract on behalf of another party.
20.1 Nothing in this Agreement shall constitute Code Engines as the agent of the Subscriber and Code Engines shall not have any right or power whatsoever to contract on behalf of or bind the Subscriber in any way in relation to third parties. Nothing in this Agreement shall constitute a partnership or a joint venture between the Parties.
21.1 Any notice shall be deemed to have been received by one Party to the other Party under, or in connection with this Agreement shall be in writing and signed by or on behalf of the Party giving it by an authorized signatory.
21.2 Any notice that shall be served by hand, e-mail or post shall be deemed to have been duly given so served:
– if delivered by hand, upon the signature of a delivery receipt;
– if delivered by pre-paid first-class post or other next working day delivery service at the address provided below;
– if sent by email, at the e-mail id provided below, at the time the sender’s email system shows the email to have been successfully sent.
21.3 The address and e-mail ids of the Parties are as follows
– For Code Engines:
22 GOVERNING LAW & JURSTICTION
22.1 This Agreement shall be governed by and construed in accordance with Emirate of Dubai and the Federal Laws of the United Arab Emirates as applied in the Emirate of Dubai, without any reference to any rule of choice or conflict of laws.
22.2 In the event that a dispute shall rise in relation to this Agreement, including any question regarding its existence, validity or termination, the Parties shall first seek settlement of that dispute through negotiation. If the dispute is not settled by negotiation within fifteen (15) working days following the due service of a notice of dispute by one party to another, or such further period as the Parties shall agree in writing, the dispute shall be referred to and finally resolved by Arbitration under the Arbitration rules of the Dubai International Arbitration Centre (DIAC)(“rules”), which rules are deemed to be incorporated by reference to this Article. The selected language in the arbitration shall be English and the number of Arbitrators shall be one. The seat, or legal place, of Arbitration shall be Dubai, United Arab Emirates.
If a competent court decides for any reason that any clause or any part thereof is unenforceable, the remaining clauses shall remain in full effect.
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