LICENSE

Terms and Conditions of Access to Apoha Data and Disclaimer of Liability
 
Apoha Limited (“Apoha”) offer you (the “Recipient”) access to certain analytical data (the “Apoha Data”) and an accompanying report (the “Report”) and further offer the Recipient a licence to do certain acts in relation to the Apoha Data. These offers are made subject to your acceptance of all of the provisions of this agreement.
 
By accepting these offers the Recipient is entering into a binding contract, which establishes a legal relationship between the Recipient and Apoha and the Recipient agrees that the circumstances are as follows:
 
The Apoha Data have been derived by technical and scientific research conducted by Apoha and making use of proprietary intellectual property and trade secrets belonging to Apoha.
 
The Recipient has seen a sample of the Apoha Data (the “Sample”), which provides an indication of the Apoha Data for a small number of analytes.
 
The Recipient understands the complete Apoha Data to have the same structure as the Sample but to relate to a greater number of analytes.
 
In consideration of the benefit to the Recipient of access to the complete Apoha Data and to the Report and the benefit of the licence granted by this agreement, the Recipient hereby agrees to the following:
 
Definitions & Terminology
 
1.     Clause and paragraph headings shall not affect the interpretation of this agreement.
 
2.     A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
 
3.     Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
 
4.     A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it.
 
5.     “Purpose” means the use of the Apoha Data by the Recipient to validate and improve computer programs and analytical methods owned by the Recipient.
 
6.     “Representatives” means employees, agents and other representatives of the Recipient.
 
1.              The Apoha Data, Copyright, Database Right & Confidentiality
1.1            The Recipient hereby acknowledges and affirms that the Apoha Data is a database within the meaning of section 3A(1) of The Copyright Designs and Patents Act 1998 and the arrangement and contents of the Apoha Data are Apoha’s own intellectual creation.
1.2            The Recipient hereby acknowledges and affirms that the Report is a copyright work at least because it constitutes an original literary work and, as between the Recipient and Apoha, all copyright which subsists in the Report is owned solely by Apoha.
1.3            The Report and the Apoha Data (other than the Sample) are both Confidential Information, save to the extent that:
(a)         Their content is or becomes generally available to the public (other than as a result of its disclosure by the Recipient or its representatives in breach of this agreement), (except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as confidential information); or
(b)         Their content was available to the Recipient on a non-confidential basis prior to disclosure by Apoha; or
(c)         Their content was lawfully in the possession of the Recipient before the information was disclosed to it by Apoha as evidenced by written records; or
(d)         the parties agree in writing is not confidential or may be disclosed.
1.4            The Recipient shall keep the Confidential Information confidential and, except with the prior written consent of Apoha:
(a)         not use or exploit the Confidential Information in any way except for the Purpose; or
(b)         not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this agreement; or
(c)         not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of Apoha); and
(d)         The Recipient must at all times apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use.
1.5            The Recipient may disclose the Confidential Information to those of its Representatives who need to know this Confidential Information for the Purpose, provided that:
(a)         it informs its Representatives of the confidential nature of the Confidential Information before disclosure;
(b)          it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with this agreement as if they were the Recipient; and
(c)         it keeps a written record of these Representatives,
and it shall at all times be liable for the failure of any Representative to comply with the terms of this agreement.
1.6            The Recipient may disclose Confidential Information only to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.

2.              Proprietary Rights and Licence
2.1            Apoha owns all rights in all intellectual property in the Apoha Data and all rights in all intellectual property in the Report and all rights in the Confidential Information (collectively, “the Rights”).  
2.2            The Recipient hereby agrees that nothing in this agreement transfers any of the Rights or grants any licence in the Rights whatsoever except as expressly set out in the subsequent paragraph 2.3 of this agreement.
2.3            Apoha hereby grant to the Recipient a revocable worldwide licence under the Rights to use the Apoha Data for the Purpose (“the Licence”).
2.4            The Recipient shall not use the Apoha Data or permit it to be used other than as expressly permitted by the Licence.

3.              Return of Information and Announcements
3.1             At the request of Apoha, the Recipient shall promptly:
(a)         destroy or return to Apoha all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information;
(b)         erase all the Confidential Information from its computer systems to the extent possible; and
(c)         certify in writing to Apoha that it has complied with the requirements of this clause, provided that a Recipient may retain documents and materials containing, reflecting, incorporating, or based on Apoha’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority, and to the extent reasonable to permit the Recipient to keep evidence that it has performed its obligations under this agreement. The provisions of this agreement shall continue to apply to any documents and materials retained by the Recipient.
3.2            Without the prior written consent of Apoha, the Recipient shall not make, or permit to be made, any public announcement, statement, or representation relating to:
(a)         Apoha or any brand, trading style or indication of trade origin associated with Apoha, including the names of Apoha’s employees and directors.
(b)        any connection between the Recipient and any of the things listed in the preceding paragraph 3.2.a
(c)         this agreement or the Licence;
(d)        the Apoha Data
(e)         the Report; or
(f)         the Purpose.
3.3            Any public announcement, statement, or representation permitted by Apoha under the preceding paragraph 3.2. shall include a statement of Apoha’s contribution to the Purpose and the content of the statement shall be a matter of Apoha’s sole discretion.

4.              Reservation of Rights and Acknowledgement
4.1            Apoha reserves all rights in the Confidential Information and in the Apoha Data and in the Report.
4.2            Apoha does not make any express or implied warranty or representation concerning the Apoha Data or the Report, or the accuracy or completeness of the Apoha Data or the Report.
4.3            The disclosure of the Apoha Data or the Report by Apoha shall not form any offer by, or representation or warranty on the part of, Apoha to enter into any further agreement.
4.4            The Recipient acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this agreement. Accordingly, without prejudice to any other rights and remedies it may have, Apoha shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this agreement.

5.              Indemnity
5.1            The Recipient shall indemnify and keep fully indemnified Apoha at all times against all liabilities, costs (including legal costs on an indemnity basis), expenses, damages and losses including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and other reasonable costs and expenses suffered or incurred by the Apoha arising from any breach of this agreement by the Recipient and from the actions or omissions of any Representative.
5.2            Apoha disclaims all possible liability and to the maximum extent permissible by law shall not be liable for any loss or damage arising directly or indirectly from anything done in reliance on the Apoha Data or in reliance on the Report or in pursuance of the Purpose.

6.              Term and Termination
6.1            At their sole discretion Apoha may terminate the Licence upon giving the Recipient 7 days’ written notice.
6.2            Notwithstanding any termination of the Licence or this agreement the obligations of the Recipient shall continue for a period of 5 years from such termination.
6.3            Termination of the Licence or this agreement shall not affect any accrued rights or remedies to which Apoha is entitled.

7.              Entire Agreement and Variation
7.1            This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
7.2            Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
7.3            No variation of this agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).

8.              No Waiver
8.1            Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
8.2            No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.

9.              Assignment
9.1            Except as otherwise provided in this agreement, no party may assign, sub-contract or deal in any way with, any of its rights or obligations under this agreement or any document referred to in it.

10.           Notices
10.1         Any notice or other communication required to be given under this agreement, shall be in writing and shall be delivered by email to:
(a)         Apoha at [INSERT EMAIL ADDRESS FOR NOTICES];
(b)        The Recipient at the email address specified by them in their acceptance of this agreement.
10.2         Any notice or other communication shall be deemed to have been duly received at 9.00 am on the second Business Day after receipt by the email system of the party to whom it is sent.

11.           No Partnership
11.1         Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

12.           Third Party Rights
12.1         This agreement is made solely for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
12.2         The parties may terminate, rescind or vary this agreement without the consent of any person who is not a party to this agreement. 

13.           Governing Law and Jurisdiction
13.1         This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.2         The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
 
This agreement has been entered into on the date of the Recipient indicating their acceptance of it.