This Product Module applies to purchases of Unit4 Business World (Business World) software products through Agilyx. This Module covers licensing and use of Business World, whereas frontline support and hosting are covered in other modules.
Back to the CSAThis is a Product Module for the CSA and forms part of an Agreement wherever an Order Form specifies that Unit4 Business World (Business World) is an inclusion.
Capitalised words and phrases in this Product Module have their meaning from the Dictionary and the CSA unless the contrary intention appears.
The Rules of Interpretation apply to this Product Module.
Certain other words and phrases in these General Terms of Business have their meanings as set out below:
Licence Restrictions means the volume and type of user numbers purchased by the Customer as specified on the Order Form.
Associates means the Customer’s ultimate holding or parent company and those companies or entities in which the Customer or its ultimate holding or parent company directly or indirectly hold shares (or has the ability to exercise control over the voting rights of shares) which constitute fifty percent or more of the issued share capital of those companies or controls the appointment of the majority of the board of directors.
Duly Authorised Sub-Contractors means persons acting on the Customer’s behalf either under an outsourcing or facilities management arrangement; or a consultancy agreement, in each case under terms of confidentiality at least as restrictive/onerous than those set out in this Agreement and requiring compliance with the terms of this Agreement.
Unit4 means Unit 4 N.V. a limited liability company organised under Dutch law, with a registered office of Stationspark 200, (3364 DA) Sliedrecht, The Netherlands, and registered with the Chamber of Commerce Rotterdam under number 23087578, or any one of its Associates.
Documentation has its meaning from the ‘Licence is not a transfer of Unit4’s Intellectual Property Rights’ subclause below
Subject to the terms of the Agreement (and the Customer’s continual compliance with those terms), Agilyx grants the customer an individual, non-exclusive, non-transferable licence to use Business World in accordance with the restrictions and limitations provided on the Order Form (or as amended/updated from time-to-time) as a Subscription Service and in accordance with the provisions of the Agreement (Licence).
Business World and all copies of it and the in-built help files for Business World (Documentation) are the exclusive property of Unit4 and/or its licensors and all Intellectual Property Rights, title or interest in Business World will at all times remain with Unit4 and/or its licensors.
Agilyx warrants that it has the right to grant the Licence to the Customer.
If additional users over and above the initial amount set out in the Licence Restrictions on the Order Form are required, the Customer must request licenses for those users from Agilyx in writing. In response, Agilyx will provide a proposal for any the Customer’s required additional user licenses. If the proposal is accepted, the Annual Subscription Payment will be adjusted to account for the additional users.
Business World may not be used by more than the agreed number of users specified in the Licence Restrictions on the Order Form.
The Customer agrees that their Licence must at all times be sufficient to cover each user that is able to connect to and access Business World.
In broad terms, and without limiting this clause, the Customer is only licensed to use Business World for its own internal business purposes, and the internal business purposes of its Associates.
More specifically, Business World may only be used for installation and configuration purposes in the normal course of the Customer’s business and/or the businesses of its Associates, by:
the Customer (including its directors, officers and employees) and its Duly Authorised Sub-Contractors for carrying out data inputting and reporting for its own internal business purposes and those of its Associates;
either:
the Customer (including its directors, officers and employees);
Agilyx, as an approved services partner of Unit4; or
another party, but only after receiving the express written approval of Agilyx for that party,
The Customer’s Associates (including their directors, officers and employees) for their own internal business purposes in each instance, provided that:
each such organisation is not a competitor of Unit4; and
this right provided in this subclause shall automatically cease if such organisation ceases to be an Associate, and
The Customer’s consumers who would reasonably need to access Business World in order for the stated business purpose of Business World to be fulfilled.
The Customer may not permit access to Business World by any third party without the prior written permission of Agilyx to do so, except that access by the Customer’s temporary staff or sub-contractors solely for its own and its Associates' internal business purposes shall be permitted. Access by third parties for any other reason is not permitted.
The Customer must procure that any sub-contractors permitted to use Business World in each case only do so under terms:
of confidentiality no less onerous than those set out in the Agreement (see the General Terms of Business for applicable confidentiality provisions); and
requiring compliance with the terms of the Agreement.
Business World may not be used to provide data processing services to any third party, save to the extent set out above as described in ‘Acceptable use of Business World’ subclauses.
The Customer accepts responsibility and agrees to be liable for the acts and/or omissions of its employees, Associates, temporary staff or sub-contractors in relation to any breaches of the Agreement by such employees, Associates, temporary staff or sub-contractors.
By installing and using Business World, the Customer agrees it will be responsible for ensuring that each of its employees, Associates, temporary staff, consultants and sub-contractors who are allowed to access or use Business World will comply with the terms of the Agreement and will indemnify Agilyx in full for any breach of the Agreement by them.
Business World is protected by copyright laws and international treaty provisions. Unit4 and its suppliers own and retain all right, title and interest in and to Business World, including all copyright, patents, trade secret rights, trademarks and other Intellectual Property Rights therein.
The Customer’s possession, installation or use of Business World does not transfer any title to the Intellectual Property Rights in Business World to the Customer who will not acquire any rights to Business World except as expressly set forth in the Agreement.
Any and all copies of Business World and Documentation made must contain the same proprietary notices that appear on and in Business World and its Documentation.
The Customer must reproduce any copyright notice on all material related to or part of Business World on which any such copyright notice is displayed, including any copies made in accordance with the Agreement. The Customer must not remove any copyright notices, trademark credits, confidentiality notice, mark, legend or other information included in Business World.
Except as provided in the ‘Acceptable use of Business World’ subclauses, the Customer must:
secure and protect the Intellectual Property Rights in Business World;
ensure that no copies of Business World in any form are made without the express permission of Agilyx in writing; and
ensure that no copies are given to any third party without the express permission of Agilyx in writing.
The Customer may not purport to assign, transfer, mortgage, charge, part with possession, or in any way deal with any of its rights, duties, or obligations under the Agreement or Business World without the previous consent in writing of Agilyx.
The Customer must instruct its employees, temporary staff or sub-contractors having access to Business World not to copy (except as otherwise permitted in the Agreement), decompile, disassemble, reverse engineer or duplicate Business World or provide information or assistance relating to these activities to any third party.
If a third party makes a claim against the Customer that any Business World infringes its Intellectual Property Rights based on the authorised use of Business World in accordance with the terms of the Agreement, Agilyx or its nominee will defend, indemnify and hold the Customer harmless against the claim in respect to all losses, damages, liabilities, claims, settlements, legal fees and other expenses incurred by the Customer, if the Customer does the following:
notify Agilyx, not later than ten (10) calendar days after the Customer receives notice of the claim (or sooner if a response is required by applicable law or court timeframe);
give Agilyx or its nominee sole control of the defence and any settlement negotiations; and
give Agilyx or its nominee the information, authority, and reasonable assistance it needs to defend against or settle the claim.
If Agilyx or its nominee believes, or it is determined that, any part of Business World may have violated someone else's Intellectual Property Rights based on the Customer’s authorised use of Business World in accordance with the terms of the Agreement, Agilyx or its nominee may choose to either:
modify Business World to be non-infringing (while substantially preserving its utility or functionality); or
obtain a license to allow for continued use; or
or if the above alternatives are not commercially reasonable, Agilyx may end the licence for the applicable part of Business World and refund a reasonable apportionment of the Annual Subscription Payment paid by the Customer, giving regard to the total amount paid for but remaining unused.
Notwithstanding the ‘Third Party Intellectual Property Claim indemnity’ subclause above, Agilyx or its nominee will not indemnify the Customer:
if the Customer alters Business World (which is the sole cause of the infringement) or use it outside the authorised scope of use; or if the Customer uses a version of Business World which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of Business World which was provided to the Customer; for purposes of this clause configuration and maintenance services are not deemed to constitute alterations of Business World;
to the extent that an infringement claim is based upon products or services not provided by Agilyx;
to the extent that an infringement claim is based upon the combination of any Business World, with any products or services not provided by Agilyx; and
for infringement caused by the Customer’s actions against any third party if Business World as delivered to the Customer and used by it in accordance with the terms of the Agreement would not otherwise infringe any third party Intellectual Property Rights.
Subject to this clause, Agilyx warrants that:
for thirty (30) days from the date of original purchase, Business World will perform to any specification contained in the Documentation; and
to the best of Agilyx’s knowledge Business World does not and will not infringe the patent, copyright, trade secret, trademark, or other Intellectual Property Rights of third parties in the Territory.
Agilyx does not warrant (whether within the thirty (30) day period set out above or otherwise) that the operation of Business World will be uninterrupted or error free at any time.
Agilyx shall not be liable (whether within the thirty (30) day period set out above or otherwise) for any failure of Business World as a result of a modification to Business World code, combination of Business World with other materials, or use of Business World in a manner for which it was not intended or other than as permitted by the Agreement.
Agilyx’s entire liability and the Customer’s exclusive remedy for any breach of the foregoing warranties (set out in this clause) shall be:
the repair of the defective parts of Business World;
the replacement with software with equivalent functionalities; or
in the event this repair or replacement is not acceptable to Agilyx, the return of a reasonable apportionment of the Annual Subscription Payment paid by the Customer,
however, these remedies are not available to the Customer if the relevant defect has resulted from accident, abuse or misapplication.
Except for the limited warranties set out in this clause, Business World is provided "as is" or “out of the box”, and to the maximum extent permitted by applicable law, Agilyx disclaims all warranties, conditions or terms either express or implied, including but not limited to implied warranties, conditions or terms of merchantability and fitness for a particular purpose with respect to Business World and the accompanying Documentation.
The Customer assumes responsibility for selecting Business World to achieve its intended results (for example through a request for proposal, demonstration or other assessment process), and for the installation (unless otherwise agreed, for example in an implementation services agreement with Agilyx) of, use of, and results obtained from Business World.
To the maximum extent permitted by law and without limiting any other provision of the Agreement, Agilyx makes no warranty, condition or term that Business World will be error free or free from interruptions or other failures or that Business World will meet Customer requirements.
Agilyx has obtained a contractual warranty from Unit4 that one copy of the most recent version of the source code of Business World has been deposited with an escrow agent. The Customer will have right of access to the source code in the event of Unit4 being placed in receivership or liquidation (save for a solvent group re-organisation) and Unit4's ultimate parent company being placed in an analogous or similar position as the case may be. This right is dependent upon the Customer taking out a contract for this service with an escrow agent and paying the appropriate charges.
The Customer hereby acknowledges that Business World may be subject to export and import control and that export or import contrary to such regulation is prohibited. The Customer hereby agrees that Business World will not be exported from the Territory directly or indirectly separately or as part of a system without, at the Customer’s own cost, first complying with all applicable laws and regulations of and obtaining all licences from the government of the Territory, the UK Government, the United States Department of Commerce and/or any other appropriate agency. At the Customer’s request and expense, Agilyx or its nominee may assist the Customer to apply for such licences. Agilyx or its nominee will provide the Customer with the ECCN codes for the software. Agilyx or its nominee is responsible for, at its own cost, compliance with all applicable laws and regulations of and obtaining all licences from the Government of the Territory and any other appropriate government or agency for the import or export to the country where the Customer is located.
From time to time Unit4 may announce end-of-life notices for Business World which (if issued) will be deemed to automatically terminate the availability of support for Business World in accordance with the terms set out in such end of life notice.
