These Terms note 1(a) and explanatory notes, set out the terms and conditions on which we, Correvate, permit you, a licensed user, to deploy the Vercator Desktop (“the Software) note 1(b) in your business.
note 1 (a) - Terms for later releases
An enhanced version of the Software will be released in 2019 which will be subject to different terms and conditions of use.
note 1 (b) - Embedded IP
The Software is proprietary and protected by a variety of intellectual property rights. These include exclusive rights
to commercialise: (i) a patent application relating to a technical advance originated in University College London that enables the automatic registration and analysis of 3D point clouds, (ii) the copyright in software programs enabling the implementation of that technical advance, (iii) additional programs which may have been originated by Correvate or acquired from third parties on commercial terms (such as some open source material and the user authentication software supplied by Reprise Software, Inc), all of which licensed programs being referenced in the Software’s opening screen, and (iv) copyright in a user manual relating to the Software.
2. Scope of Licence
Subject to these Conditions, and for the Term see clause 6, this Licence permits you to deploy the Software to register and analyse any 3D point clouds whether originated by you or by any third party subject to note 2(a). You may commercialise the resultant registered point clouds and their analysis without limit as to time note 2(b). This Licence in non-exclusive and not transferable. Sub-licensing is not permitted.
note 2 (a) - Limit on scope of Licence
This Licence does not permit the supply of registration services per se, that is the supply to others for fees of a service for registering 3D point clouds captured by others.
note 2 (b) - Post-Term usage
This permission applies only to those point clouds registered during the currency of this Licence and does not impliedly provide an extension to the Term see clause 6.
3. Access to the Software
You may download from our website copies of the Software onto your Designated Computers note 3(a). Access to and use of the Software is permitted only to Designated Computers and only to the extent verified within the limits of your subscription note 3(b).
note 3 (a) - Designated Computers
Designated Computers (being laptops and/or workstations over which you have control) are those that you nominate from time to time by reference to their MAC address. You may, on reasonable notice, vary your selection of Designated Computers subject to the cap on the number for which you have subscribed.
note 3 (b) - Authentication of use
Logon from any Designated Computer is gated by the authentication process provided by Reprise® software.
4. Amount of usage
You may throughout the Term see clause 6 run the Software simultaneously on any and on all Designated Computers with no limit on the amount of such usage.
You shall permit the Software to collect and supply us with statistics on your usage of the Software note 4(a) PROVIDED THAT we shall not release any such data to third parties that identifies you or your usage note 4 (b).
note 4 (a) - Reports on usage
The statistics, sent to us automatically by encrypted e-mail, will include the duration of processing, the size of datasets processed, and the number of scans registered per job.
note 4 (b) - Limits on our use of data
We shall use the data mainly in support of product improvement. We shall not release any data to third parties except where aggregated or anonymised so that your patterns of usage cannot be seen by others.
Our fees for usage of the Software are quoted separately and may be subject to sales and withholding taxes note 5 (a).
Payment is to be made into our nominated English bank account by the deadline stated in our invoice notes 5 (b) & (c).
note 5 (a) - Sales and withholding taxes
Sales tax: In some countries, our fees attract sales taxes which, where applicable, will be added to our invoices.
Withholding tax: In some countries, our fees are subject to withholding tax at the rate identified in our invoice. If
withheld, you must supply us with a certificate confirming the amount withheld in a form that satisfies the requirements of the UK tax authorities.
note 5 (b) - Payment
Payments are to be made to the bank account nominated in our invoice and effected by electronic funds transfer in accordance with the protocols shown in our invoice.
note 5 (c) - Late payment
Should any payment not be received by us by the deadline stated in our invoice (which will never be less than 21 days from the invoice date), your access to the Software will be denied. Access will be restored only on payment of the overdue amounts in full.
Subject to your adherence to these Conditions and the payment of our fees see clause 5, your Licence shall be valid at least until 31st December 2018 and beyond until our release of an improved version of the Software ('the Term') note 6.
note 6 - New version of the Software
We plan to release an improved version of the Software early in 2019 that enables deployment on cloud as well as on desktops. Release will be effected in a way that permits your orderly migration from the Vercator Desktop. Revised terms and conditions will then apply
7. Maintenance and support
Throughout the Term, we shall supply you free of charge with maintenance note 7(a) and technical support services note 7(b).
note 7 (a) - Maintenance
We shall notify you when we upload any minor bug fixes
and updates to the then current version of the Software for download by you from our website.
note 7 (b) – Technical support
Technical support will be provided initially through an online customer service portal Further support may be delivered (during our office hours only) by telephone, and screen-sharing.
8. Restricted acts
Save as expressly permitted by these Conditions, you shall not do any act or thing, nor omit to do any act or thing, which infringes note 8 our proprietary rights see note 1 (b) in the Software.
note 8 - Infringing acts
No activity falling outside the scope of this Licence may be undertaken in relation to the Software. Here follows a non-exhaustive list of proscribed activities:
◦ implementing UCL's technical advance except by deploying the Software on Designated Computers
◦ supplying registration services per se to others
◦ enabling access to the Software by third parties
◦ altering or removing any copyright notices
◦ decompiling, reverse engineering, modifying, and/or creating derivative works from the Software
◦ aiding, abetting, facilitating or concealing any infringement by any third party
We represent and warrant: (i) that we have those rights to the Software as are outlined in note 1(b); (ii) that we have the exclusive and unencumbered right to grant licences in accordance with these Conditions; (iii) that the Software, when deployed in accordance with the guidance of our operating manual can implement the novel verification method referred to in note 1(b); and (iv) that prior to the release of any version of the Software, such version will have been verified by commercially available and up-to-date anti-virus software to be free of malware.
We make no other representations and give no other warranties whatsoever. In particular, we make no representations nor give any warranty relating to the capacity of the Software to register any particular 3D point cloud datasets note 9 (a). So, we shall not be liable either to you or to your clients for any losses, consequential or otherwise, arising from any alleged shortcomings in the functionality of the Software and, to the maximum degree permitted by law, we exclude any liability for such losses note 9 (b).
note 9(a) - Performance of the Software
While we have widely disclosed the capacity of the Software to resolve and to register 3D point cloud datasets, we give no representation that any category of dataset will always be registered. This is because the efficacy of the Software is dependent on the way in which it is deployed in each instance. We cannot practically have, nor do we accept, any responsibility for the detailed manner of deployment of the Software.
note 9 (b) – Risks of deployment
The exclusion of liability is the natural consequence of note 9 (a). With the exceptions noted below, the risks of registering 3D point cloud datasets lie with you, not us, and we respectfully advise that you review your exposure to these risks with your insurers. The exceptions relate to the categories of risk and liability which, in the UK’s jurisdiction, may not lawfully be excluded. These are (i) the risk of a supplier directly causing injury or death, (ii) the risk of harm consequent on a supplier’s negligence, and (iii) liability for fraudulent acts or omissions. We accept these residual liabilities and have insured against this residual risk.
We may disclose the fact that you are a licensed user of the Software; and you may, in promoting your business, disclose that you are a user of the Software note 10.
note 10 - Publicising your use of the Software
We should be delighted if you mention to others your use of the Software in your business, particularly if you use this formula: “Registered using Vercator™ technology”.
We shall endeavour to keep confidential any sensitive information note 11 about your businesses that we may receive in the course of providing services to you.
note 11 - Sensitive information
We prefer that you do not provide us with any sensitive or confidential information. If, however, this is incidentally disclosed to us in the course of our providing you with support services, we shall endeavour to maintain confidentiality provided that you have advised us at the time of disclosure of the scope and sensitivity of that information.
We do not expect to disclose to you any of our sensitive or confidential information; but where we do so, you shall keep that information confidential.
12. Third party claims
You shall promptly tell us if you receive any threat or claim from any third party who asserts that your use of the Software infringes their proprietary rights. Subject to your permitting us to control the conduct of any dialogue with that third party, we shall, subject to a cap note 12(a), indemnify you from the costs of such third party claims; and we shall keep you informed of the progress of that dialogue.
We shall endeavour to procure your continuity of use of the Software at our cost (other than for the payment of our usage fees) for the remainder of the Term note 12(b); but, where we are unable to do so, we shall terminate this licence forthwith.
note 12 (a) - Indemnity
Our indemnity shall cover your liability to the third party claimant arising from use of the Software during the period preceding the third party's claim subject to a cap of £100 for any one claim.
Our obligation to indemnify you shall survive the termination of your licence.
note 12 (b) - Continuity of use
To achieve our stated objective we may be obliged either to take a licence to use the third party's proprietary rights or alter the Software to avoid infringement. Either of these may lead to limitations on your future use of the Software.
13. Infringement by others
We shall have the sole right to pursue third parties who infringe our proprietary rights and shall have the right to retain any damages (including loss of profits) and costs that may be awarded in relation to their infringement note 13(a).
Where their infringement directly arises from your breach of these Terms, you will indemnify us to the extent of any unrecovered damages and costs to which we are entitled note 13(b).
note 13 (a) - Pursuing infringers
We intend vigorously to pursue third parties who infringe our proprietary rights, and to use our best efforts to recover damages, and related costs directly from them.
note 13 (b) - Indemnity
This indemnity applies only where you have enabled in whole or in part the infringing act and applies only to that proportion of the damages and costs to which we are entitled that we are unable to recover from the primary infringer.
We shall liaise through the channels specified in our offer of participation note 14.
note 14 - Nominees
You should name your team members with responsibility for technical and accounting matters and may advise us of changes through the customer service portal.
Any formal notice given by either of us shall be in writing and directed to the other's appropriate nominee or channel, and shall be effective when delivered note 15.
note 15 - Delivery of Notices
Written notices may be sent by any one or more channel of the notifier’s choosing and shall be deemed to have been received on the earliest of: (i) the date of the recipient’s acknowledgment of receipt (which, for e-mails, may be generated by the recipient’s mail-handling software on first viewing of an incoming e-mail); (ii) the date on which delivery is recorded by the postal or courier service engaged to effect delivery, and (iii) three working days from the date of despatch by conventional mail.
16. Termination on breach
We may terminate this Licence at any time on notice should you be in persistent and/or flagrant breach of any of these Conditions.
17. Law & disputes
These terms shall be interpreted and applied in accordance with English law.
We shall endeavour to settle disputes by mediation before recourse to litigation note 17.
note 17 - Mediation
Where a dispute cannot be resolved in discussion between our principal contacts see note 16, the principal contacts shall jointly select and instruct an independent, appropriately qualified mediator (perhaps a lawyer, an accountant or an engineer, having regard to the nature of the dispute). The mediator shall be asked, in the capacity of an expert, not an arbitrator, to resolve the dispute initially on the basis of a single briefing memorandum from each party to which the other shall have a single opportunity to respond, and thereafter having regard to any written supplemental questions that the adjudicator may ask either party to which questions both parties may respond in writing. Our intention will be to treat the mediator's findings as final (although neither party shall be prevented from initiating litigation thereafter provided that either may disclose details of the mediation in ensuing proceedings). The costs of mediation shall be borne equally unless the mediator directs otherwise.