1.1 Subject to the terms of this Agreement and in consideration of the Licensee paying upon execution of this Agreement the fee specified in the Schedule ("Fee") and further complying with its obligations pursuant to this Agreement:
1.1.1 Amino hereby grants to the Licensee a non-exclusive, non-transferable license exercisable during the Term of this Agreement to use the SDK, described in the Schedule, in order to develop applications using Amino APIs.
1.1.2 Amino shall provide to the Licensee the support services described in the Schedule ("Support Services").
2.1 The Licensee shall pay an annual Fee. Such Fee shall be payable yearly in advance on the Effective Date and thereafter on each subsequent anniversary of the Effective Date, and the Licensee shall pay the Fee within 30 days of the date of Amino’s invoice.
2.2 Amino may from time to time increase or otherwise amend the prevailing Fee by giving the Licensee at least 30 days' written notice prior to the Renewal Date with effect from which the change is to apply.
2.3 All sums payable to Amino under this Agreement:
2.3.1 exclude VAT, sales tax, and/or usage tax, which the Licensee shall pay in addition if Amino is obliged to charge it; and
2.3.2 shall be paid in full without any deduction or withholding. If the Licensee is obliged by law to make any deduction or withholding then it shall gross up the amount of the payment so that, after the deduction or with holding has been made, Amino receives in its hands the full amount due to it under this Agreement.
2.4 Without prejudice to any other right or remedy, if the Licensee fails to pay to Amino any sum when due then Amino may:
2.4.1 charge the Licensee (and the Licensee shall pay) interest, running from the due date of such sum, at the rate of 12% above the base rate of Barclays Bank plc from time to time, such interest to accrue daily but be charged monthly and compounded until payment of the overdue sum in full together with such interest; and/or
2.4.2 suspend its performance of this Agreement until it receives payment in full, together with such interest if charged.
3.1 The Licensee acknowledges that: software is licensed not sold; it obtains no ownership rights in the SDK (or in any IPR therein); and that, as between the Licensee and Amino, Amino and its licensors owns all right, title, and interest in and to the SDK (except for open source software).
4.1 Neither party excludes or limits its liability to the other for death or personal injury caused by its negligence, for fraud or otherwise insofar as any exclusion or limitation of its liability is void, prohibited or unenforceable by law. All other provisions of this Agreement shall be read subject to this Clause 4.1.
4.2 Amino warrants that the SDK will conform in all material respects in accordance with its specification. In the event of any breach of such warranty, Amino will, as the Licensee's exclusive remedy and Amino's entire liability, at its own cost use all commercially reasonable endeavours to rectify the material non-conformity.
4.3 Amino warrants that it will perform the Support Services with reasonable care and skill. If it shown to be in breach of such warranty in relation to particular Support Services, it shall, as the Licensee's exclusive remedy and Amino's entire liability, at its own cost as soon as reasonably practicable re-perform the relevant Support Services.
4.4 Save as expressly provided herein, all warranties, representations and conditions, whether express or implied by law or otherwise, are hereby excluded to the fullest extent permitted by law. Without limiting the scope of the immediately preceding sentence, no warranty (other than expressly provided herein) is given in relation to the SDK as to its performance, accuracy, or as to any results generated through its use, including, without limitation, any implied warranties of satisfactory quality, fitness for a particular purpose, system integration, data accuracy, SECURITY, or non-infringement. Neither does Amino warrant that the operation of the SDK or of the Application will be uninterrupted or error-free or that the functions contained in SDK will operate in the combination which may be selected for use by Licensee or that the Application or other results generated through use of the SDK will meet the Licensee’s requirements.
4.5 The Licensee agrees to indemnify and hold harmless Amino from any and all liability and expense (including reasonable attorneys’ fees and court costs) incurred by Amino as a result of or in connection with:
4.5.1 any claim, demand, or action against Amino based on, related to, or arising out of the use of the SDK by Licensee and/or any subcontractor and/or distribution of its application by Licensee; or
4.5.2 any claim, demand, or action against Amino based on, related to, or arising out of any use of third party IPR by Licensee and/or any subcontractor not in accordance with this Agreement.
4.6 Subject to clause 7.1, Amino’s total liability whether in contract, tort, or otherwise arising out of or in connection with this Agreement shall be limited to the amount of Fees paid or payable by the Licensee to Amino pursuant to this Agreement.
4.7 Under no circumstances shall Amino or any of its licensors be liable, in contract in tort or otherwise, for any loss of data, profits, business, revenue, goodwill or anticipated savings or for any indirect or consequential or economic loss whatsoever howsoever arising out of or in connection with this Agreement.
5.1 The Term of this Agreement will commence on the Effective Date, and unless terminated as provided herein, will continue for the Term as set forth in Schedule 1 (the “Term”).
5.2 Either party may terminate this Agreement by written notice to the other having immediate effect if:
5.2.1 the other commits a material breach of the terms of this Agreement which is incapable of remedy;
5.2.2 the other commits a material breach of this Agreement which is capable of remedy and, having received from the other written notice of such breach stating the intention to terminate this Agreement if the breach is not remedied, fails to remedy the breach within 30 days;
5.2.3 the other ceases to carry on its business or has a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or passes a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction makes an administration order or liquidation order or similar order, or that other party enters into any voluntary arrangement with its creditors or is unable to pay its debts as they fall due; and/or
5.2.4 the other is subject to any event which is analogous in any foreign jurisdiction to any of the events referred to in Clause 5.2.3.
5.3 Any provision which needs to survive termination to give effect to it, shall survive any termination of this Agreement.
5.4 Upon termination of this Agreement (howsoever caused):
5.4.1 the Licensee and/or any subcontractor shall cease using the SDK and all rights granted to the Licensee by Amino pursuant to this Agreement shall cease; and
5.4.2 the Licensee shall at Amino's option, either return to Amino, or delete, destroy, or otherwise make permanently unavailable, all copies or partial copies of the SDK in the possession or control of the Licensee and/or any subcontractor.
6.1 Any notice given hereunder by either party to the other shall be in writing and shall be served by sending it by Federal Express or comparable international overnight courier post to the address of the other party given in this Agreement. Unless the contrary is proved, notices so sent shall be deemed received 3 days after delivery of the same to the courier.
7.1 Save as expressly referred to herein, this Agreement shall not be assigned, transferred, subcontracted, sublicensed or delegated in whole or in part by the Licensee without the prior written consent of Amino. Amino shall be absolutely free to assign, transfer, subcontract, sublicense or delegate its rights and obligations under this Agreement, whether in whole or in part without reference to the Licensee.
7.2 No variation or amendment of this Agreement shall bind either party unless made in writing and agreed to in writing by duly authorised officers of both parties.
7.3 If it transpires that the whole or any part of any provision of this Agreement is illegal, void or unenforceable under any law that is applicable to this Agreement, or if any competent authority or court of competent jurisdiction in a final decision so determines, this Agreement shall continue in force save that such provision (or the relevant part of it) shall be deemed to be deleted from this Agreement with effect from the date of such agreement or decision or such earlier date as the parties may in writing agree.
7.4 The headings in this Agreement are for convenience only and are not intended to have any legal effect; all references to Clauses are references to clauses in this Agreement; references to a "person" shall be deemed to include an individual, a company, a limited liability partnership or an unincorporated business or other body or legal person or group of legal persons.
7.5 A failure by either party hereto to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
7.6 The Licensee confirms that it has not been induced to enter into this Agreement by any representation made by or on behalf of Amino.
7.7 This Agreement is not intended to confer a benefit on any third party, and no third party shall have any right to enforce or to benefit under any of the provisions of this Agreement.
7.8 The relationship of the parties under this Agreement is that of independent contractors and, subject as otherwise expressly provided in this Agreement, neither party is the agent of the other for any purpose and neither party shall make any representation, give any warranty or enter into any contractual or other commitment purporting to be binding on the other.
8.1 The Licensee understands and acknowledges that any disclosure or misuse of any Confidential Information or of any Amino IPR, open-source software or third party IPR may cause Amino irreparable harm, the amount of which may be difficult to ascertain and that damages may not be an adequate remedy for any breach by the Licensee of the provisions of this Agreement. Accordingly, without prejudice to any other rights or remedy Amino may have, the Licensee acknowledges that Amino shall be entitled to apply for the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement.
