SAVITRACE EULA

END USER LICENCE AGREEMENT

Terms of software access and use

These terms ( “End User Licence Agreement” or “EULA”) govern access to and use of the Savitrace forensic financial analysis software (“Software”), operated by Savient Limited (a company incorporated in England & Wales with registered number 10088118) (“Savient”) by our customers and other licensees, together with their Authorised Users (collectively “Customers” and each a “Customer”). By confirming acceptance of the electronic version of this EULA (as Savient may update from time to time) during the registration or logging in process, the Customer accepts this EULA (whether on behalf of yourself or a legal entity that you represent).

If you are a Customer and you or your organisation is bound by a service agreement with Savient then the terms of that agreement shall apply to your use of the Software and shall take precedence over the terms of this EULA.

Each of the Customer and Savient are each a “Party” and together the “Parties” to this EULA.

1. Definitions and interpretation

  1. In this EULA, except where the context otherwise requires, the following words shall have the following meanings:
    1. Account means an account created by (or on behalf of) the Customer on the Software;
    2. Authorised Users means each individual natural person, whether an employee, business partner, contractor or agent of a Customer who is registered or permitted by the Customer to use the Software subject to this EULA;
    3. Business Day means a day other than a Saturday, Sunday or public holiday in England;
    4. Consultancy Services means the data manipulation and/or triaging services provided by Savient to the Customer pursuant to the terms of a proposal or statement of work agreed between Savient and the Customer;
    5. Customer Data means data inputted by either Customer or Savient on the Customer’s behalf for the purpose of facilitating the Customer’s use of the Subscription Services;
    6. Documentation means the guides and other documentation provided to the Customer by Savient from time to time in connection with the delivery of the Subscription Services;
    7. Deliverable means each document, report or other output created pursuant to the delivery of the Consultancy Services or using the Software, in each case, specifically for the Customer;
    8. Force Majeure Event has the meaning given to it in Clause 12;
    9. Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, trade names, service marks and domain names, rights in get-up and trade dress, goodwill and the rights to sue for passing off or unfair competition, design rights, semi-conductor topography rights, database rights, confidential information (including know-how and trade secrets and the rights to use and protect confidential information) and all other intellectual property rights, in each case whether registered or unregistered and including all applications, registrations granted pursuant to any of the applications and rights to apply for and be granted, renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
    10. Normal Business Hours means 09:00 to 17:00 local UK time, each Business Day;
    11. Services means the Consultancy Services and the Subscription Services;
    12. Subscription Fees means the licence fees set out in the relevant purchase invoice issued by Savient in respect of the User Subscription(s) purchased by the Customer for its use of the Software, including applicable VAT or other sales taxes;
    13. Subscription Services means the forensic financial analysis service provided by Savient and delivered to the Customer via the Software in accordance with this EULA, and associated support;
    14. Term means the period of authorised use of the Software and the Subscription Services by the Customer and its Authorised Users, as detailed in the Service Agreement or applicable invoice (and subject to earlier termination in accordance with Clause 11).
    15. User Subscriptions means the paid-for subscriptions required by the Customer to utilise the Software and receive the Subscription Services; and
    16. Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
  2. Access to the Software
    1. With effect from the commencement of the Term Savient hereby grants to the Customer, on and subject to: (i) the restrictions set out in this Clause 2 and the terms and conditions of this EULA; and (ii) the Customer purchasing any User Subscriptions (if applicable), a non-exclusive, non-transferable licence to allow the Customer to access the Software and Documentation and to use the Software solely for the Customer’s business purposes and specifically limited to the Customer’s staff and operations based / trading in the United Kingdom.
    2. The Customer will incur additional usage fees if it exceeds the transactions and / or case volumes as set within the quote and corresponding purchase order.
    3. The Customer shall not knowingly store, distribute or transmit any Virus or any material through the Software that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, that facilitates illegal activity, depicts sexually explicit images or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation or disability, or any other illegal activities.
    4. In no circumstances shall the Customer (or any of its Authorised Users) upload to the Software any cardholder data or other data that is subject to the PCI Security Standards Council’s security standards, from time to time.  Any breach of this Clause 2.3 shall constitute a material breach of this EULA.
    5. The Customer shall not:
      1. attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this EULA or as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
      2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties; or
      3. attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this EULA; or
      4. access all or any part of the Software and Documentation in order to build a product or service which competes with the Software and/or the Documentation; and
      5. the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify Savient promptly of any such unauthorised access or use.
  3. Services
    1. Savient shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to this EULA.
    2. Savient shall use reasonable endeavours to provide the Consultancy Services in accordance with the timescales agreed with the Customer and shall inform the Customer promptly upon becoming aware that the provision of any Consultancy Services may be delayed beyond such timescales.  The scope of the Consultancy Services shall be as defined in the relevant proposal or statement of work and shall be subject to the project assumptions and customer dependencies set out in such document.  Whilst Savient shall use reasonable endeavours to ensure the accuracy of any data manipulated for the Customer pursuant to the provision of the Consultancy Services, it shall be the responsibility of the Customer to verify the accuracy of the Deliverables produced by Savient pursuant to the provision of such Consultancy Services.
  4. Customer Data
    1. The Customer acknowledges that the information provided to Savient or that is collected by Savient (including the Customer Data) shall be used and protected as described in the Data Protection Policy contained in, or referred to in, the Service Agreement.
    2. The Customer shall own all right, title and interest in and to all of the Customer Data. Without prejudice to its commitment to keep the Customer Data confidential in accordance with Clause 8, Savient shall be entitled to use the Customer Data to perform its obligations pursuant to the Service Agreement and to assist with the development of enhancements to the Services and the Software.
  5. Customer’s obligations
    1. The Customer shall:
      1. ensure that the use of the Services shall not infringe any Intellectual Property Rights of any third party;
      2. comply with all applicable laws and regulations with respect to its activities under this EULA; and
      3. use the Services and the Documentation in accordance with the terms and conditions of this EULA and shall be responsible for any breach of this EULA by any Authorised Users.
  6. Proprietary rights
    1. The Customer acknowledges and agrees that Savient and/or its licensors own all Intellectual Property Rights in the Software and the Documentation. Except as expressly stated herein, this EULA does not grant the Customer any rights to, or in any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
    2. The Customer shall own the Intellectual Property Rights subsisting in the Deliverables other than Savient’s pre-existing Intellectual Property Rights (such as report formats or structures) that are contained within such Deliverables.
    3. Savient confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this EULA and that the Customer’s use of the Services will not infringe the Intellectual Property Rights of any third party.
  7. Charges and payment
    1. The Customer shall pay the Subscription Fees to Savient in accordance with the instructions set out on the relevant invoice issued to the Customer by Savient.
    2. If Savient has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Savient:
      1. Savient may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Savient shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    3. All amounts and fees stated or referred to in this Agreement are exclusive of value added tax, which shall be added to Savient’s invoice(s) at the appropriate rate.
  8. Confidentiality
    1. Each Party may be given access to confidential information from the other Party in order to perform its obligations under this EULA. A Party’s confidential information shall not be deemed to include information that:
      1. is or becomes publicly known other than through any act or omission of the receiving Party;
      2. was in the other Party’s lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
      4. is independently developed by the receiving Party, which independent development can be shown by written evidence; or
      5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    2. Each Party shall hold the other’s confidential information in confidence and, unless required by law, not make the other’s confidential information available to any third party, or use the other’s confidential information for any purpose other than the implementation of this EULA.
  9. Indemnity
    1. The Customer shall defend, indemnify and hold harmless Savient against third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
      1. such claim did not arise as a result of a manifest error of the Software;
      2. such claim did not arise as a result of any breach of this EULA by Savient;
      3. the Customer is given prompt notice of any such claim;
      4. Savient provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
      5. the Customer is given sole authority to defend or settle the claim.
  10. Limitation of liability
    1. This Clause 10 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and sub-contractors):
      1. arising under or in connection with this EULA;
      2. in respect of any use made by the Customer of the Services, Documentation and the Deliverables, or any part of them; and
      3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this EULA.
    2. Except as expressly and specifically provided in this EULA:
      1. other than in the case of a manifest error caused by the Software or any breach of this EULA by Savient, Savient shall have no liability for any damage caused by the Customer’s use of the Services;
      2. Savient shall have no liability for any damage caused by:
        1. errors or omissions in any Customer Data;
        2. any actions taken by Savient at the Customer’s direction; or
        3. a change in law that restricts or invalidates the Customer’s use of the Services.
      3. the Services and the Documentation are provided to the Customer on an “as is” basis.
    3. Nothing in this EULA excludes the liability of either Party:
      1. (A)for death or personal injury caused by negligence; or
      2. (B)for fraud or fraudulent misrepresentation.
    4. Nothing in this EULA excludes the liability of the Customer in relation to the indemnity set out in Clause 9.
    5. Subject to Clause 10.2 and Clause 10.3:
      1. neither Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this EULA; and
      2. Savient’s total aggregate liability in respect of the delivery of the Services in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising:
        1. in connection with the provision of the Consultancy Services shall not exceed in aggregate an amount equal to the total fees paid by the Customer pursuant to the applicable proposal or statement of work; and
        2. otherwise in connection with the performance or contemplated performance of this EULA shall not exceed in aggregate for all causes of action arising in a Subscription Year an amount equal to the total Subscription Fees paid by the Customer in the Subscription Year in which the relevant causes of action arose.
  11. Termination
    1. The Customer or Savient may terminate its use of the Software with effect from the date of expiry of the then-current subscription period (as set out in the relevant order form or invoice) by giving the other party not less than 30 days’ prior written notice.  If neither party exercises such termination right, the Term shall automatically extend for a further period of the same duration as the initial term following the expiry of the then-current subscription period at the same level of Subscription Fees, save as increased by Savient in accordance with Clause 11.2.
    2. Increases to Subscription Fees will be capped at RPI +2% (UK Retail Prices Index) as at the preceding Jan, and as published on https://www.ons.gov.uk/economy/inflationandpriceindices/timeseries/czbh/mm23 (or its replacement index)
    3. Without affecting any other right or remedy available to it, Savient may suspend access to the Software and/or terminate this EULA with immediate effect by giving written notice to the Customer if:
      1. the Customer commits a material breach of any term of this EULA;
      2. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
      3. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
  12. Force majeure
    1. Savient shall have no liability to the Customer under this EULA if it is prevented from or delayed in performing its obligations under this EULA, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Savient or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration (each such event being a “Force Majeure Event”).
  13. Rights and remedies
    1. Except as expressly provided in this EULA, the rights and remedies provided under this EULA are in addition to, and not exclusive of, any rights or remedies provided by law.
  14. Entire Agreement
    1. Unless the Customer has entered into a separate Service Agreement with Savient, this EULA constitute the whole and only agreement between the Parties relating to the subject matter of this EULA.
    2. Except in the case of fraud, each Party acknowledges that in entering into this EULA it is not relying upon any pre-contractual statement which is not set out in this EULA.
    3. Except in the case of fraud or fraudulent misrepresentation, no Party shall have any right of action against any other Party arising out of or in connection with any pre-contractual statement except to the extent that it is repeated in this EULA.
    4. For the purposes of this Clause, “pre-contractual statement” means any draft, agreement, undertaking, representation, warranty, promise, assurance or arrangement of any nature whatsoever, whether or not in writing, relating to the subject matter of this EULA made or given by any person at any time prior to this EULA becoming legally binding.
  15. Contract (Rights of Third Parties) Act 1999
    1. The Parties to this EULA do not intend that any terms of this EULA should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to this EULA.
  16. Governing law and jurisdiction
    1. This EULA is governed by and shall be construed in accordance with English law. Any matter, claim or dispute arising out of or in connection with this EULA, whether contractual or non-contractual, is to be governed by and determined in accordance with the laws of England and Wales.
    2. The courts of England and Wales are to have exclusive jurisdiction to settle any dispute whether contractual or non-contractual arising out of or in connection with this EULA. Each Party irrevocably submits to the exclusive jurisdiction of the Courts of England.