Test Evolve Limited (Company No: 11346418) (hereinafter called "TE-LTD") whose registered office is at Kings Parade, Lower Coombe Street, Croydon, CR0 1AA

Definitions: 

Authorised User means the employee, officer, director of the Licensee who is authorised pursuant to clause 2 to use Test Evolve for the Permitted Purpose; 

Evaluation Period means the trial period of 14 days 

Fee means the fees payable by the Licensee together with any other amounts payable under the licence as set out in the web site. Note that fees may rise at the sole discretion of TE-LTD upon reasonable notice to the Licensee in accordance with clause 3F; 

Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, get-up, database rights and rights in data, semiconductor chip topography rights, software, accelerators, utility models, domain names and all similar rights and, in each case whether registered or not, including any applications to protect or register such rights, including all renewals and extensions of such rights or applications, whether vested, contingent or future, and wherever existing; 

Licensee means a party purchasing a Test Evolve Licence in accordance with these Terms and Conditions

Permitted Purpose means the internal business purposes of the Licensee only and does not  include the provision of outsourcing services and the use of Test Evolve by or on behalf of any third party. 

Restrictions means the restrictions set out in Clause 4; 

Specification means the detailed specification of Test Evolve as set out in the user documentation provided by TE LTD to Licensees, such Specification to include a technical specification together with operating instructions; 

Support Services means any ancillary services to support Test Evolve including the provision of training, answering of queries and creation of, and/or amendment to, user manuals; 

Initial Term means one calendar year (or such shorter period as the Licensee subscribes for) from and including the Commencement Date unless terminated earlier in accordance with Clause 9 or otherwise renewed as provided herein; 

Renewal Term means any additional renewal period from and including the date of expiry of the Initial Term;

Term means the combined period of the Initial Term and the Renewal Term;

Test Evolve means the product and service (as further defined in the Specification) commonly known as “Test Evolve” as provided to Licensee at the Commencement Date; 

Update means a Test Evolve maintenance update, patch or bug-fix which does not constitute 

an Upgrade; and 

Upgrade means a version or release of Test Evolve intended to have new or improved functionality including any new version or release of Test Evolve designated by TE-LTD as an upgrade, 

1. INTRODUCTION 

A) By entering into a Licence Agreement, the User is deemed to have accepted the Terms and Conditions appearing below in their entirety unless otherwise agreed to be amended in writing. 

B) TE LTD reserves the right to amend these Terms and Conditions at any time in which case the User will be provided with 14 days’ notice of any such amendments.

C) For the sake of clarity, all content in the TE-LTD Website (referred to within these Terms and Conditions) is expressly subject to, and must be read in conjunction with, these Terms and Conditions in their entirety.

2. LICENCE GRANT AND SUPPORT 

A. Subject to Licensee's payment of the Fee and compliance with these Terms and Conditions, TE-LTD will grant to the Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term for the number of agreed Authorised Users for the permitted Purpose subject to the Restrictions. Enterprise users are limited to a maximum of 20 licences.

B. During the Term of the Licence, TE-Ltd may provide Updates and/or Upgrades to the User at its sole discretion (but is under no obligation to do so.) and fixes for any defects in Test Evolve.  The provision of such Updates, Upgrades, fixes or other enhancements and/or modifications to the Test Evolve Service shall be subject to all covenants and conditions in the Licence Agreement, including, but not limited to, the restrictions on the User`s use of the Test Evolve Service.

C. TE LTD shall have no obligation to support or provide Support Services to the User relating to the Test Evolve Service but may, however, make such services available at its sole discretion.

D. Test Evolve uses open source code software which is subject to a version of the General Public License, and other ‘open source’ software that falls within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of the Licence and ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of this Agreement.

E. For clarity, TE-LTD owns all rights, title, and interest in the Test Evolve Service. TE-LTD reserves all rights not expressly granted to the User in the Licence Agreement.

F. Licensee shall be liable for the acts and omissions of the Authorised Users as if they were its own and shall procure that any Authorised Users are aware of, and comply with, the obligations and Restrictions imposed on the Licensee, including all obligations relating to the use or Test Evolve and TE-LTD'S Confidential Information (as defined in Clause 11) 

G. The Licensee shall grant TE-LTD a non-exclusive licence to use the Licensee`s logo/trademark in connection with reasonable marketing and promotional activities for the period of the Term plus five years and, if requested, to provide TE-LTD with suitable references and testimonials relating to Test Evolve.

H. The Licence to use Test Evolve is subject to a “fair and reasonable” use policy at the absolute discretion of TE-LTD. In the event that a Licensee abuses this, TE-LTD reserves the right to terminate the Licence in accordance with Clause 9.

3. FEE 

A. The Fee and any other charges (including expenses, expressly agreed between the parties in writing shall be paid by the Licensee at the rates and in the manner described on the TE-LTD website. 

B. Monthly/Annual fees to TE-LTD shall be paid by credit card activation from the details logged with TE-LTD.

C. The fee and any other charges payable under this licence are exclusive of VAT which shall be payable by the Licensee at the rate and in the manner prescribed by law.

D. The Fee set out in the Licence is valid as at the date of the Licence. The Fee shall be amended on an annual basis after the expiry of the Initial Term to reflect increases or decreases in the published consumer retail prices index (CPI) and shall be subject to an increase of CPI plus 2% (but not to exceed a maximum of 5%).

4. RESTRICTIONS 

A. Licensee shall take reasonable steps to protect all Intellectual Property Rights vesting in Test Evolve which shall include, but shall not be limited to, the following; 

i ensuring the Authorised User(s) comply with clause 4(B) of the licence; and 

ii.notifying TE-LTD in writing as soon as it becomes aware of any actual or suspected unauthorised use of Test Evolve, 

B. Licensee and the Authorised User(s) shall not: 

i. allow anyone who is not an Authorised User to access and use Test Evolve; 

Ii. use Test Evolve for any other purpose than the permitted Purpose; 

iii.copy, modify, adapt, correct errors in, or create derivative works (including the creation of training materials or manuals regarding the use) of Test Evolve; decode, reverse engineer, disassemble, decompile or otherwise translate or convert Test Evolve; 

iv.assign, lease, resell, distribute or otherwise deal in or encumber Test Evolve; 

v.remove or modify any copyright or similar notices, or any of TE-LTD's or any other entity's branding, that Test Evolve causes to be displayed when used or that is displayed in any documentation TE-LTD provides pursuant to this Clause; 

vii. knowingly act in a way that could damage the goodwill and reputation vesting in TE-LTD or Test Evolve; 

vii. use Test Evolve in any form other than machine-readable object code form; 

ix. install or use Test Evolve, or permit it to be installed or used, on behalf of any third party not expressly authorized in the Licence; and 

x. attempt to circumvent or interfere with any security features of Test Evolve. 

C. Any breach of this clause 4 shall constitute a material breach and subject to termination in accordance with clause 9(B)

5. WARRANTIES 

A TE-LTD warrants and represents that: 

i.TE-LTD has the right to grant the licences granted by it hereunder; 

ii.the provision of Test Evolve and Licensee's use and/or possession thereof shall not infringe any Intellectual Property Rights of any third party; and 

iii.Test Evolve shall conform to the Specification and when transferred to Licensee, shall not contain any viruses. 

B. Except as expressly stated in the Licence or these Terms and Conditions, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including fitness for purpose and suitability) are hereby excluded to the extent permitted by law. 

6. LIABILITY 

A. Neither party excludes or limits liability to the other party for: 

i fraud, wilful misconduct or gross negligence; 

ii.death or personal injury caused by negligence; 

iii loss of or damage or corruption to data; 

iv.breach of clause 11( "Confidentiality"); 

v.any indemnities given by one party to the other; 

vi breach of the warranty given under clause 5A; or 

vii anything else which it cannot by law limit or exclude. 

B. Without prejudice to Clause 6A(vii) in no event shall TE-LTD be liable to the Licensee for any indirect loss or damage including any indirect loss of profit, business, revenue, or goodwill, but only to the extent that such loss or damage is indirect, 

C. Subject to Clause 6A(vii) the aggregate liability of TE-LTD under or arising out of the Licence shall in no event exceed the greater of: 

i. £1,000,000; or 

ii. the level of insurance cover held by the indemnifying party.

7. IP INDEMNITY 

A. Subject to Clause 7(B), TE-LTD shall: 

i, defend at its own expense any claim brought against Licensee by any third party alleging that the Licensee's use of Test Evolve infringes any third-party Intellectual Property Rights (an "IP Claim'); and 

ii. indemnify in full the Licensee against any damages awarded or agreed in settlement or final judgment of IP Claim. 

B. The provisions of Cause 7(A) shall not apply unless the Licensee: 

I. promptly notifies TE-LTD upon becoming aware of any actual or threatened IP Claim; 

Ii. makes no comment or admission and takes no action that may adversely affect TE-LTD's ability to defend or settle the IP Claim); 

iii.at TE-LTD's cost and expense, provide all assistance reasonably required by TE-LTD; and 

iv. gives TE-LTD sole authority to defend or settle the IP Claim as TE-LTD considers appropriate.

C. If Test Evolve is or is likely to become subject to an IP Claim, TE-LTD shall at its sole discretion: 

I. use its reasonable endeavours to obtain the right for the Licensee to continue to use Test Evolve; or 

il replace or modify Test Evolve (or the part of it subject to the IP Claim) so that it becomes non infringing without materially affecting the functionality of Test Evolve. 

D. If TE-LTD is unable to achieve either of the outcomes described in Clause 7(C) then, on receiving written notification from TE LTD, the Licensee shall promptly cease using Test Evolve and the Licence shall immediately terminate. TE-LTD shall refund the Licensee on a pro-rata basis for any unused proportion of the Fee paid in advance. This Clause 7(D) is without prejudice to the Licensee's rights and remedies under Clause 8. 

E. TE-LTD shall have no liability or obligation under this Clause 7 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from: 

i. any modification of Test Evolve without TE-LTD's prior express written approval; 

Ii. use of Test Evolve otherwise than in accordance with the Licence or TE-LTD's express written instructions; or 

Iii. Use of Test Evolve in combination with any software, hardware or data that has not been supplied or expressly authorised by TE-LTD. 

F. Licensee shall indemnify, keep indemnified and hold harmless TE-LTD from and against any losses, claims, damages, liability costs (including legal and other professional fees) and expenses incurred as a result of or in connection with any breach by Licensee or any Authorised Users of the Licence, 

8. LIMITATIONS 

A. Test Evolve is licenced to the Licensee on an 'as is' basis and, except as provided for in Clause 5 (Warranties), TE-LTD does not warrant its merchantability or fitness for a particular purpose. 

B. Except for the rights to use Test Evolve as expressly granted in the Licence, the Licensee shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in Test Evolve and no Intellectual Property Rights of either party are transferred or licensed as a result of the Licence.

9. TERM AND TERMINATION 

A.  The Initial Term shall automatically renew for a subsequent period of the same length as the Initial Term (the Renewal Term) unless either party cancels their subscription during the course of the current Term. 

B. Either party may terminate the Licence before the expiry of the Term by written notice if the other party: 

i.materially breaches the Licence (including non-payment of the Fee), or in the case or TE-LTD, if any Authorised Users materially breaches the terms of the licence and, if remediable, the breach has not been remedied by the party in material breach within 30 days of receipt of a breach notice from the other party; or 

ii. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so, is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if TE-LTD reasonably believes that to be the case;

Iii.  becomes the subject of a company voluntary arrangement under the Insolvency Act 1986; 

iv. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income or has a resolution passed for its winding up. 

10. CONSEQUENCES OF TERMINATION 

On termination or expiry of the Licence, access to the service for configuration and reporting within Test Evolve shall be immediately withdrawn although the Licensee shall be free to use the base version of the Test Evolve software on a “local” basis for the remainder of the Term

11. CONFIDENTIALITY 

Each party will hold in confidence for the other party, to use only for the purposes of this Licence and not to print, publicize or otherwise disclose to any third party, Confidential Information of the other party. "Confidential Information" of the other party means any Intellectual Property Rights, document, material, idea, data or other information which relates to either party's research and development, trade secrets or business affairs or which is marked as or considered to be confidential and disclosed by either party to the other for the purposes hereof. Confidential Information does not include any document, material, data, or other information which: 

i is or becomes publicly known through no wrongful act of the receiving party; or is lawfully obtained by the receiving party from a third party who in making such disclosure breaches no obligation of confidence; or 

ii.is independently developed by the receiving party, as can be evidenced by reasonable written record; or 

iii.is or becomes available to the receiving party on a non-confidential basis from a third party under no obligation of confidence to the disclosing party. 

12. DATA PROTECTION

A) Both Parties shall duly observe all their obligations under the UK Data Protection Act 2018 and the EU General Data Protection Regulation (Regulation (EU) 2016/679) and all applicable laws and regulations relating to the privacy, protection or processing of personal data, including where applicable guidance and codes of practice issued by the Information Commissioner and, as applicable, the equivalent of any of the foregoing in any relevant jurisdiction.

B) On request from the either party, the other party shall provide the requesting party with all such relevant documents and information relating to their data protection policies and procedures as the other may reasonably require;

C) The Parties acknowledge and agree that the Licence does not require either party to act as a Processor of the other. In the event that there is any change which requires either party to act as a Processor the Parties agree, at their own cost, to enter into data protection clauses as required by the Data Protection Legislation (as amended or replaced from time to time).

13. ASSIGNMENT 

A. The Licensee may not assign and/or sub-contract any of its rights under the Licence unless expressly stated herein or without the written consent of TE-LTD, such consent not to be unreasonably withheld or delayed. 

B. Nothing in the licence shall prevent TE-LTD from dealing freely with its Intellectual Property (including but not limited to Test Evolve) including assigning, subcontracting, transferring, mortgaging, charging, declaring a trust of or dealing in any other manner with any or all of its rights or obligations under the Licence, provided that it gives prior written notice to the licensee and that TE-LTD shall remain liable for any breach of the warranty given by TE-LTD pursuant to cause 5(A)(V). 

14. FORCE MAJEURE 

If any circumstances occur which are beyond the parties’ control and which prevent performance of their obligations under the licence, except the payment obligations, the obligations of the parties shall be suspended for so long as the events mean that performance of the Licence is impossible. Should that period of suspension exceed four (4) weeks, either party may serve notice to immediately terminate the Licence.

15.. NO PARTNERSHIP OR AGENCY 

The parties are independent and are not partners or principal and agent and the Licence does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall represent that it has any authority to make any commitments, on the other party's behalf. 

16. THIRD PARTY RIGHTS 

A person who is not a party in the Licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions. 

17. ENTIRE AGREEMENT 

The Licence constitutes the entire contract between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Further, each party acknowledges that it has not entered into the licence in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Licence. 

18. GOVERNING LAW AND JURISDICTION 

The Licence and any dispute or claim arising out of, or in connection with, it's subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts or England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with the licence, its subject matter or formation including non contractual disputes or claims.