1. SOFTWARE LICENSE
1.1 Subject to the Subscriber paying for the User Subscriptions in accordance with the Conditions, InSight Analytics Solutions grants Subscriber a non-exclusive, non-transferable, non-sub-licensable license wherever situated access and use the Software as InSight Analytics Solutions may deliver or make available to Subscriber solely for the Permitted Use of the Software during the Subscription Period.
1.2 InSight Analytics Solutions has no obligation under the Contract to provide any maintenance or support or other services relating to the Software, save as provided under the Contract. InSight Analytics Solutions shall take reasonable and appropriate measures to back up Subscriber’s system and data and all other necessary measures to prevent any file or data loss in accordance with its Back up Policy.
1.3 Subscriber shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and InSight Analytics Solutions reserves the right, without liability or prejudice to its other rights to Subscriber, to disable Subscriber's access to any material that breaches the provisions of this clause.
1.4 Subscriber shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under the Contract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Software in order to build a product or service which competes with the Software; or
(c) subject to clause 14., license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party, or
(d) allow any Authorised Users to access and use the Software or the Documentation in excess of the number of User Subscriptions it has purchased from time to time or for any purpose other than the Permitted Purpose or otherwise for the exclusive benefit of the Subscriber; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 1.
1.5 Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify InSight Analytics Solutions.
1.6 The rights provided under this clause 1 are granted to Subscriber only, and shall not be considered granted to any subsidiary or holding company of Subscriber.
1.7 InSight Analytics Solutions shall take commercially reasonable steps to provide the Software or any Services by any estimated date or, if different any date specified in the Proposal, but shall not be liable for failure to meet that date.
1.8 The Subscriber agrees that the terms and condition of the Contract will apply equally to each Authorised User as to Subscriber (other than those terms relating to payment obligations and this Clause 1.7) and the Subscriber will procure that each Authorised User complies with those terms and conditions and shall indemnify InSight Analytics Solutions and its employees and agents (and shall and shall pay such sums to InSight Analytics Solutions as shall indemnify InSight Analytics Solutions and each affiliate of InSight Analytics Solutions) against all costs, losses, damages and reasonable expenses suffered or incurred by InSight Analytics Solutions and each InSight Analytics Solutions affiliate arising out of or in connection with each Authorised Users use of the Services or Software.
2. USAGE DATA
2.1 Subscriber shall own all right, title and interest in and to all of the Usage Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Usage Data.
2.2 InSight Analytics Solutions shall, in providing the Software, comply with its Privacy and Security Policy relating to the privacy and security of the Usage Data.
2.3 If the InSight Analytics Solutions processes any personal data on Subscriber's behalf when performing its obligations under the Contract, the parties record their intention that Subscriber shall be the data controller and InSight Analytics Solutions shall be a data processor and in any such case:
(a) Subscriber acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Subscriber are located and InSight Analytics Solutions's other obligations under the Contract;
(b) Subscriber shall ensure that Subscriber is entitled to transfer the relevant personal data to InSight Analytics Solutions so that InSight Analytics Solutions may lawfully use, process and transfer the personal data in accordance with the Contract on Subscriber's behalf;
(c) Subscriber shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) InSight Analytics Solutions shall process the personal data only in accordance with the terms of the Contract;
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
2.4 Subscriber grants InSight Analytics Solutions and its Affiliates a non-exclusive irrevocable license to use the Usage Data internally for research and development, product and improvement, machine learning, statistics and benchmarking purposes and to publish on an anonymised and aggregated basis.
3. THIRD PARTY PROVIDERS
4. SUBSCRIBER'S OBLIGATIONS
4.1 Subscriber shall:
(a) provide InSight Analytics Solutions with:
(i) all necessary co-operation in relation to this Contract; and
(ii) all necessary access to such information as may be required by InSight Analytics Solutions;
in order to provide the Software, including but not limited to Usage Data, security access information and configuration services;
(b) comply with all applicable laws and regulations of any applicable territory in which the Subscriber intends to use of the Software, Usage Data and its activities under this Contract;
(c) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to InSight Analytics Solutions's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Subscriber's network connections or telecommunications links or caused by the internet; and
(d) obtain any required licenses and consents from applicable site owners and third parties in respect to the use of the Services including in respect to third party assets and in order for Subscriber to carry out its obligations under the Contract.
5. CHARGES AND PAYMENT
5.1 The Proposal shall specify the Charges for the provision of the Software subject to these Conditions.
5.2 In the event that payment is not received within 30 days of the date of the InSight Analytics Solutions’s invoice then InSight Analytics Solutions shall be entitled in its sole discretion effective upon immediate written notice to:
(a) suspend access to the Software without liability to the Subscriber until the outstanding amount is paid in full and the timetable and any other times agreed for the provision of the Services shall be amended accordingly; and/or
(b) terminate the Contract in accordance with Clause 8.2.(b).
5.3 InSight Analytics Solutions may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Subscriber against any amount payable by InSight Analytics Solutions to the Subscriber.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY
6.1 Subscriber acknowledges and agrees that InSight Analytics Solutions and/or its licensors own all intellectual property rights in the Software and the Documentation. Except as expressly stated herein, the Contract does not grant Subscriber any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software or the Documentation.
7. INDEMNITY AND LIMIT OF LIABILITY
7.1 Subscriber shall defend, indemnify and hold harmless the InSight Analytics Solutions against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Subscriber's use of the Services,
7.2 The Services is provided “as is” without warranty of any kind. Specifically InSight Analytics Solutions
(a) does not warrant that Subscriber's use of the Software will be uninterrupted or error-free; or that the Software, Documentation and/or the information obtained by Subscriber through the Software will meet Subscriber's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Subscriber acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(c) excludes all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
7.3 This clause 7.3 sets out the entire financial liability of InSight Analytics Solutions (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Subscriber:
(a) arising under or in connection with the Contract;
(b) in respect of any use made by Subscriber of the Services, the Software and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
7.4 Subscriber assumes sole responsibility for results obtained from the use of the Services by Subscriber, and for conclusions drawn from such use. InSight Analytics Solutions shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to InSight Analytics Solutions by Subscriber in connection with the Services, or any actions taken by InSight Analytics Solutions at Subscriber's direction;
7.5 Nothing in the Contract excludes the liability of InSight Analytics Solutions:
(a) for death or personal injury caused by InSight Analytics Solutions's negligence; or
(b) for fraud or fraudulent misrepresentation.
7.6 Subject to clause 7.4 and clause 7.5:
(a) InSight Analytics Solutions shall not 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 the Contract; and
(b) InSight Analytics Solutions's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Charges received by InSight Analytics Solutions by Subscriber in respect to the delivery of the Services during the 12 months immediately preceding the date on which the claim arose.
8. TERM AND TERMINATION
8.1 The Contract shall, unless otherwise terminated as provided in this clause 8, commence on the Effective Date and shall continue for the Subscription Period.
8.2 The Contract may be terminated by:
(a) either party if the other continues in default of any obligation imposed upon it hereunder for more than 30 days after written notice has been dispatched by that party by to the other to remedy such default;
(b) InSight Analytics Solutions on written notice to the Subscriber in the event that the Subscriber fails to pay within the period allowed and/or fails to make payment after a further request for payment; either party on written notice to the other in the event that the other makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the other or the other ceases, or threatens to cease, to carry on business or any other analogous action is taken in respect to the inability of the other party to pay its debts; or any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 28(b) or the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(c) by InSight Analytics Solutions in the event of continuance of an event of Force Majeure as described in Clause 9 for a period of 30 days written notice has been dispatched by InSight Analytics Solutions
8.3 On termination of this Contract for any reason:
(a) all licences granted under this Contract shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) InSight Analytics Solutions may destroy or otherwise dispose of any of the Usage Data in its possession unless InSight Analytics Solutions receives, no later than ten days after the effective date of the termination of this Contract, a written request for the delivery to Subscriber of the then most recent back-up that is in the form of pdf reports of the Usage Data. InSight Analytics Solutions shall use reasonable commercial endeavours to deliver the back-up to Subscriber within 30 days of its receipt of such a written request. The then most recent back-up of the Usage Data may be requested within the said ten day period of termination to be retained by InSight Analytics Solutions within the software system in case of the Subscriber desiring to re-subscribe within 1 year. InSight Analytics Solutions’s obligations under this Clause 8.3 (c) are subject to the proviso that Subscriber has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The conditions of this clause are subject to additional terms that InSight Analytics Solutions shall stipulate and on condition that Subscriber shall pay all reasonable expenses incurred by InSight Analytics Solutions in retaining returning or disposing of Usage Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
(e) The provisions of Clauses 6,7,8,9,10,11,12,13,14,15,16,17,18,19,20.shall continue notwithstanding termination or expiry.
9. FORCE MAJEURE
INSIGHT ANALYTICS SOLUTIONS SHALL HAVE NO LIABILITY TO SUBSCRIBER UNDER THIS AGREEMENT IF IT IS PREVENTED FROM OR DELAYED IN PERFORMING ITS OBLIGATIONS UNDER THE CONTRACT, 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 INSIGHT ANALYTICS SOLUTIONS OR ANY OTHER PARTY), FAILURE OF A UTILITY SERVICE OR TRANSPORT OR TELECOMMUNICATIONS NETWORK OR EQUIPMENT, 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 THIRD PARTY SERVICE PROVIDERS OR SUB-CONTRACTORS.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12. RIGHTS AND REMEDIES
Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
13.1 If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
13.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14. ENTIRE AGREEMENT
14.1 The Contract, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
14.2 Each of the parties acknowledges and agrees that in entering into this Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Contract or not) relating to the subject matter of this Contract, other than as expressly set out in this Contract.
15.1 Subscriber shall not, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
15.2 InSight Analytics Solutions may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
15.3 InSight Analytics Solutions may contract any of its subsidiaries or affiliates to exercise any right or fulfil any obligation contained or referred to in the Contract, in place of, or in addition to, InSight Analytics Solutions. The exclusions and limitations of liability in the Contract apply to, and are for the benefit of, InSight Analytics Solutions and all its subsidiaries and affiliates.
16. NO PARTNERSHIP OR AGENCY
Nothing in this Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17. THIRD PARTY RIGHTS
This Contract does not confer any rights on any person or party (other than the parties to this Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier. Notice under this Clause may not be given by fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 0; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
19. GOVERNING LAW AND JURISDICTION
19.1 The Contract 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.
19.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Where the Contract is to be performed (a) in the European Community (EU), each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute; (b) outside the EU, any dispute arising shall be submitted to the International Court of Arbitration of the International Chamber of Commerce. The seat of the arbitration shall be in (i) London, where the Contract is for performance in the USA; (ii) Hong Kong, where the Contract is for performance in the People’s Republic of China (“PRC”). (iii) Singapore, where the Contract is for performance outside EU, USA, and PRC.
The definitions and rules of interpretation in this clause apply in this Contract.
Contract: the contract between InSight Analytics Solutions and the Subscriber comprising the Proposal, these Conditions and any other schedules attached thereto.
Authorised Users: those employees, and independent contractors of the Subscriber who are authorised by the Subscriber to use the Software and the Documentation, as further described in the Contract.
Conditions: these terms and conditions as amended from time to time in accordance with its terms.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such
Documentation: the document made available to Subscriber by InSight Analytics Solutions as notified by InSight Analytics Solutions to Subscriber from time to time, or in the Proposal, which sets out a description of the Software and the user instructions for the Software.
Effective Date: the date indicated as such in the Proposal, or if none the date the Contract enters into force.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including, algorithms, calculations, methods and calculation results, know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
Permitted Use: Activities as part of operation and maintenance, commissioning, evaluation and manufacturing of wind turbine and components.
Services: the services, including the Software and any Documentation, supplied by InSight Analytics Solutions to the Subscriber under the Contract.
Software: the Software provided by InSight Analytics Solutions to Subscriber under this Contract via website notified to Subscriber by the InSight Analytics Solutions from time to time, or in the Proposal as more particularly described in the Documentation.
Subscriber: the person or firm who licenses the Software from InSight Analytics Solutions.
Subscription Period: has the meaning given in the Proposal, subject to termination in accordance with these Conditions or any extension afforded by InSight Analytics Solutions.
Usage Data: the data inputted by Subscriber, or InSight Analytics Solutions on Subscriber's behalf for the purpose of using the Software or facilitating Subscriber's use of the Software.
User Subscriptions: the user subscriptions paid for by the Subscriber which entitle Authorised Users to access and use the Software and the Documentation in accordance with the license level set out in Proposal.
Virus: anything 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.
Proposal: the document setting out InSight Analytics Solutions’s quotation for the Services to which these Conditions relate.
InSight Analytics Solutions: InSight Analytics Solutions Limited, registered in England and Wales with company number 10511025, and whose registered office is at Romax Technology Centre, University of Nottingham Innovation Park, Triumph Road, Nottingham NG7 2TU or if applicable the Associated Company of InSight Analytics Solutions stated in the Proposal as the contracting party.