Ingot Lab End User Licence & Support Agreement

This End User Licence and Support Agreement (“EULA”) is effective from 1st May 2024 for all customers procuring a licence to Ingot Lab.

1. Definitions
1. In this EULA:

   Additional Services

   has the meaning given in the Support Services Schedule below;

   Annual Support Contract Fee

   means the fee payable for annual support, as listed in Our Current Rates;

   Contract Year

   has the meaning given in Condition 3.4 below;

   Data

   means the data generated by your use of the Equipment;

   Documentation

   means the “warranty support” document that we supply which describes the functionality and operation of Ingot Lab;

   Equipment

   means any computer or other instrument onto which Ingot Lab is installed;

   First Year

   means the twelve month period commencing on the Licence Commencement Date;

   Ingot Lab

   means the calibration formulae we supply and market under the trade mark “Ingot Lab” and which are used to convert near infra red reflectance spectra into understandable results for the material being analysed, as further described in the documentation;

   Initial Licence Fee

   means the licence fee payable in respect of the First Contract Year, as listed on Our Current Rates;

   Intellectual Property Rights

   means all patents, trade marks, service marks, registered designs, copyright, rights in and to databases, rights in and to trade secrets, know-how, confidential information, all applications and rights to apply for the same and all other rights which are the same as or similar to them which subsist at any time anywhere in the world;

   Licence Commencement Date

   means the date on which the Licence Period commences as set out in Clause 3.3;

   Licence Fee

   means the Initial Licence Fee or Annual Renewal Fee as applicable;

   Licence Period

   means the period during which the EULA is in force as set out in Clause 3.3;

   Our Current Rates

   mean our licence fees and related charges and/or rates for the type of licence being purchased or renewed and any ancillary products and services as at the date on which the relevant product or service is licensed or purchased from us, details of which are available from us on request;

   Site

   means our website, currently located at www.abvista.com;

   Support Services

   means the support services set out in the Support Services Schedule below;

   Third Party Software

   means the Windows operating system used in connection with Ingot Lab, any instrument scanning software that may be installed on your Equipment and any other third party software that may be used in conjunction with Ingot Lab;

   we

   means AB Vista, a division of AB Agri Limited, a company registered in England (Company number 193800) whose registered office is at Weston Centre, 10 Grosvenor Street, London, W1K 4QY and us and our will be construed accordingly;

   Working Hours

   means 9am until 5pm Monday to Friday UK time (except UK Bank Holidays);

   Year

   means the twelve month period commencing on the date you enter into this EULA in accordance with Condition 2.1 or any anniversary thereof; and

   you or your

   means you, the party who has licensed Ingot Lab.

2. Words used in this EULA in the singular tense are to be read to include the plural and references to a person is to be read to include companies, partnerships and other similar undertakings.
2. Entering into the EULA
1. By doing any of the following you agree to enter into this EULA which will bind you and your employees:
   1. installing or allowing us or our agent to install Ingot Lab on your equipment; or
   2. using equipment where you have purchased equipment with Ingot Lab already installed on it.
2. If you do not agree to the terms of this EULA we will not licence Ingot Lab to you and you should discontinue the installation process and/or your use of Ingot Lab immediately and return the Equipment to the relevant supplier so that they can remove Ingot Lab from it.
3. We reserve the right to replace or amend this EULA and any such replacement or amendment shall apply to the exclusion of this EULA with effect from 30 days following written notice from us. For these purposes it shall be sufficient for us to notify you that we have revised our EULA and that such revised agreement is accessible on our website or via any other medium accessible to you.
4. If more than one copy of the EULA has been made available to you and there are differences in their content, the latest version will apply.
5. You should print a copy of this EULA for future reference.
3. Licence
1. In consideration of your payment of the Licence Fee, we hereby grant to you a non-exclusive, non-transferable, non-assignable licence to use Ingot Lab on a single device (being the device onto which Ingot Lab is initially installed) for the Licence Period on and subject to the terms and conditions of this EULA. This licence does not allow you to distribute or make Ingot Lab available via a network.
2. You shall not grant sub-licences, in whole or in part, of any of the rights granted under this EULA.
3. The Licence Period will start on the earlier of the date of your first scan of a sample using Ingot Lab and the date that is one calendar month after the date of installation of Ingot Lab onto your device and will remain in force for the duration of the life of the equipment onto which it is installed unless terminated earlier under Condition 13.
4. We reserve the right to withhold your access to Ingot Lab until you have paid the Initial Licence Fee in full and cleared funds. If you purchased Equipment with Ingot Lab already installed on it and the licence of Ingot Lab was included in the price for the Equipment, this condition 3.4 shall not apply.
5. Prior to expiry of the First Year and each subsequent twelve month period (“Contract Year”), you will automatically be invoiced in respect of the Annual Support Contract Fee in order to benefit from the Support Services. Provided that you continue to pay the Annual Support Contract Fee, you shall be entitled to receive the Support Services unless we, at our discretion, decide to stop commercializing Ingot Lab, in which case we shall not be required to provide the Support Services following expiry of the then current Contract Year. In these circumstances we may, at our discretion, review the Annual Support Contract Fee to take account of the fact that Support Services are no longer being provided. Please contact your AB Vista representative or your local distributor for all matters relating to Support Services.
4. Licence Restrictions and Restrictions on Use of Data
1. Except as expressly set out in this EULA or as permitted by any local law, you agree:
   1. not to make any copies of Ingot Lab or Documentation, except that you may make copies of Ingot Lab to the extent necessary for back-up testing, security and disaster recovery purposes provided that you shall record the number and location of all copies of Ingot Lab and take steps to prevent unauthorised copying;
   2. not to loan or rent Ingot Lab or use Ingot Lab for time-sharing or public network or similar use;
   3. not to update, alter or remove Ingot Lab unless permitted in writing by us;
   4. not to provide or otherwise make available Ingot Lab in whole or in part (including object and source code), in any form to any person without prior written consent from us;
   5. not to translate, adapt, modify, reverse engineer, disassemble, decompile, or create derivative works based on the whole or any part of Ingot Lab;
   6. to comply with all technology control or export laws and regulations that apply to the technology used or supported by Ingot Lab; and
   7. not to allow anyone other than us to provide any repair or maintenance services in respect of Ingot Lab.
2. You will keep us notified of the premises at which you use Ingot Lab (Your Premises). You will allow us and our representatives access, at all reasonable times, to Your Premises in order to audit your use of Ingot Lab. If our audit establishes that you have breached the EULA then, without affecting our other rights, you will pay our audit costs together with any additional charges which would have been due had you properly complied with the EULA.
3. You agree that unless otherwise agreed with us in writing, you shall only use Data for your internal business purposes and that you shall not commercialise the Data in any way nor share the Data with any third parties without our prior written consent.
5. Acceptable Use Restrictions
1. You shall:
   1. not use Ingot Lab in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into Ingot Lab or any operating system;
   2. not infringe our intellectual property rights or those of any third party in relation to your use of Ingot Lab (to the extent that such use is not licensed by this EULA); and
   3. not use Ingot Lab in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users.
6. Updates
1. Subject to payment of the Annual Support Contract Fee, you shall have the right to receive any updates, new releases and new versions (“Updates”) of Ingot Lab. For the avoidance of doubt, any new version which incorporates new functionality shall not count as an Update for the purposes of this Clause. We will install any Updates within a reasonable period.
2. You will accept and install all Updates issued to you as and when requested by us, unless you consider that to do so would cause a significant problem, fault or error to occur that would affect the functionality or performance of Ingot Lab (other than a problem caused by the capacity or performance of the Equipment or third party software), in which case you will immediately notify us with sufficient details to allow us (without obligation) to provide a solution.
3. If you do not accept an Update when requested by us, we may not be able to continue to provide Support Services upon expiry of the current Contract Year and will notify you if this is the case.
4. Unless we specify otherwise, the EULA will apply to Ingot Lab and all Updates in the same way it applies to the original version of Ingot Lab that you purchased.
7. Your obligations
1. You will, at your own cost, be responsible for:
   1. providing and maintaining the operational and environmental conditions necessary for the proper functioning of the Equipment and Ingot Lab;
   2. internet connections and communications links involving Ingot Lab (and any data derived from its operation) and between the Equipment and any printer or other computer terminal, the resolution of any printing or communications difficulties and any wiring required;
   3. the safe custody of Ingot Lab and any of our equipment and documents left at Your Premises; and
   4. ensuring that the Equipment and Ingot Lab are operated in a proper manner by competent trained employees.
2. Where our employees are required to carry out work at Your Premises you will provide us with such computer facilities at Your Premises (including computer consumables, storage and data preparation facilities and communication facilities) information, documentation, access to your personnel and time on the Equipment as we may reasonably require.
3. You will appoint and notify to us a competent person to act as your contact person for the purposes of the EULA, such person to co-operate fully with our personnel in the performance by us of our obligations under the EULA.
8. Payment
1. Unless stated otherwise in this EULA, you will pay our invoices within thirty (30) days of their date.
2. If any sum payable due to us is not paid within seven days of its due date then (without prejudice to our other rights) we may:
   1. charge interest on such sum on a day to day basis (before as well as after any judgement) at the rate of four per cent above the UK base rate of Barclays Bank plc from time to time in force; and
   2. suspend performance of the EULA and your rights to use Ingot Lab until we been paid.
3. Where we are entitled to charge for Additional Services, unless otherwise agreed, we will charge you prior to commencement of the relevant work.
4. Our Current Rates are exclusive of VAT or other sales tax, for which you will be responsible if payable.
9. Warranties
1. Subject to the remainder of this Condition 9, we warrant that for a period of thirty days from the Licence Commencement Date Ingot Lab will, when operated in conjunction with the Equipment, be capable of performing the functions and facilities set out in the Documentation in all material respects. We warrant that we will provide the Support Services with reasonable care and skill.
2. We do not warrant that the operation of Ingot Lab will be uninterrupted or error free or that any information generated through use of Ingot Lab (the “Information”) shall be completely accurate or reliable. The Information is not intended to be relied upon in isolation, whether for making any decision relating to your business or farming policies or practices or otherwise, and are intended to be used as one of a number of considerations in relation to which you will make such decisions. To the maximum extent permitted by law, you accept that all use of and reliance on any Information shall be at your sole risk and that we shall not be liable, whether in contract, tort or otherwise, for the consequences of your use of or reliance on any Information.
3. Except as expressly stated in this clause, all warranties which might otherwise be implied into, or incorporated in, this EULA whether by statute, common law or otherwise or other terms as to Ingot Lab’s fitness for any particular purpose or its non-infringement, are excluded to the fullest extent permitted by law.
4. Ingot Lab is only intended for the chemometric prediction of spectra collected using near infra red equipment and should not be used for any other purpose.
5. You accept that Ingot Lab will only function (a) on operating software that is Windows 10 or such subsequent version as notified to you from time to time and (b) in conjunction with the NIR device for which Ingot Lab was specifically provided by us (as notified by you), provided that in the event of any change to Windows or any operating software or NIR device approved by us, we agree to use reasonable endeavours to ensure Ingot Lab remains compatible with the updated operating software or hardware but we do not warrant that Ingot Lab will remain compatible following such change and we exclude all liability for any losses resulting from any such incompatibility.
6. If you (a) use Ingot Lab for purposes other than those described in clause 9.4, (b) do not use the correct operating software as set out in Condition 9.5, (c) use Ingot Lab in conjunction with any hardware not approved by us, (d) fail to use Ingot Lab in accordance with the Documentation or (e) breach any term of this EULA, we shall not in any way be liable for any losses that you suffer as a consequence or for any defects or errors resulting from the same.
7. If we breach of any of the warranties in condition 9.1, you will promptly notify us and will allow us a reasonable opportunity to correct the breach or to re-perform the relevant Support Services (as appropriate). This clause states your sole remedy and our sole liability for any breach of the warranties in Condition 9.1.
8. You agree that you are responsible for ensuring that the facilities and functions and performance of Ingot Lab described in the Documentation meet your requirements and we will not be liable for any failure of Ingot Lab to provide any function or facility or performance that is not expressly included in that description.
10. Limitation of Liability
1. Subject to Condition 10.3 and without prejudice to Condition 9.6, our total aggregate liability to you under the EULA whether arising in contract, tort (including negligence) or otherwise howsoever will be limited to a maximum amount of the most recent Licence Fee paid by you.
2. Subject to Condition 10.3, we are not liable in contract, tort (including negligence), breach of statutory duty or otherwise for any losses or damages which may be suffered by you (or any person claiming under or through you) which fall within any of the following categories (a) loss of profit, sales, or savings; (b) loss of business opportunity, goodwill or reputation; (c) business interruption; (d) loss of, damage to or corruption of data or information and its consequences; (e) special damage (even if we were aware of the circumstances in which such special damage could arise) or (f) indirect or consequential loss or damage.
3. Nothing in this EULA excludes or limits our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation or any other liability that cannot be lawfully excluded or limited under English law.
4. You agree that in entering into this EULA you have not relied on any representation, warranty or other assurance of any kind or of any person other than those expressly set out in this EULA and that you shall have no remedy in respect of such representations, warranties or assurances and we shall have no liability in any circumstances otherwise than in accordance with the express terms of this EULA.
5. All timescales set out in this EULA for our performance are estimates only and time will not be of the essence of our performance.
6. You must give us notice of any claim within one month of the earlier of the date on which you become aware of the circumstances giving rise to the claim and the date on which you ought reasonably to have become so aware.
7. Your rights in respect of any Third Party Software apply in respect of the relevant third party licensor only and we have no liability to you in respect of that Third Party Software.
11. Intellectual Property Rights and Confidentiality
1. All Intellectual Property Rights in and to Ingot Lab, the Documentation and all other documentation, including specifications and schematics, relating to Ingot Lab (together, Information) belong to and will remain vested in us or our licensors (as applicable) at all times.
2. You will at all times (including after the EULA terminates):
   1. maintain the confidentiality of the Information;
   2. ensure that each of your employees from time to time having access to the Information is made aware, prior to such access, that the Information is confidential and that he or she owes a duty of confidence to us;
   3. ensure that neither you nor any of your employees, agents or contractors from time to time having access to the Information copies or duplicates it or divulges or makes any disclosure relating to it to any third party (whether during or after their employment by you);
   4. effect and maintain adequate security measures to safeguard the Information from theft, or from access by any person other than your employees in the normal course of their employment;
   5. promptly give us notice of any infringement of our rights in, or any unauthorised use of, or access to, the Information, of which you become aware and give us all reasonable assistance in connection with any proceedings which we may commence in respect of it; and
   6. enforce the terms of any confidentiality agreements or duties of confidence owed to you by your employees in respect of the Information.
3. We may refer to you in marketing and promotional materials as being a user of Infor Lab.
4. To the extent that Ingot Lab incorporates any third party software, you will be subject to the licence terms of the relevant third party which may be provided to you on request.
12. Use of Data
1. We retain the right to use the Data for any purpose, including, without limitation, in order to improve and develop our solutions, provided that the Data shall be anonymised so that it is in no way linked to you or your business.
13. Termination
1. Either party may terminate the EULA, without affecting its other rights, if the other:
   1. materially breaches the EULA and (if the breach can be remedied) does not remedy it within thirty days of a notice requiring it to be remedied;
   2. ceases or threatens to cease to carry on business or is declared bankrupt or enters into voluntary or compulsory liquidation or becomes insolvent, compounds with its creditors or suffers a receiver, administrative receiver or liquidator to be appointed in respect of the whole or any part of its assets or undertaking or suffers any similar or equivalent process under the laws of the jurisdiction to which it is subject.
2. We may give notice to you to terminate the EULA in whole or in part with immediate effect if you fail to pay any sum due to us under the EULA or any other agreement we have with you and such sum remains unpaid for 14 days after we have given notice to you that such sum has not been paid.
3. Termination of the EULA ("Termination") will not affect any accrued rights or liabilities of either party at the date of Termination.
4. On Termination all rights granted under this EULA will immediately cease and you will immediately: (a) stop using Ingot Lab, (b) permanently erase Ingot Lab from the Equipment and (c) return to us or destroy all copies of Ingot Lab and Documentation in your possession. You will procure that one of your officers promptly sends us written certification that you have complied with your obligations under this clause.
5. No refund of any part of any of our charges will be made on Termination and any sums due to us from you under the EULA will become immediately payable.
14. General
1. We shall not be liable to you if we are prevented from or delayed in performing our obligations under the EULA by circumstances outside our reasonable control, including, but not limited to, strikes and other industrial action, sub contractor default or breakdown of machinery.
2. The EULA sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between the parties, relating to its subject matter.
3. Subject to Condition 2.3, no variation of the EULA will be effective unless it is in writing and is signed by or on behalf of each of the parties.
4. You are not entitled to assign or sub-contract any of your rights or obligations under the EULA in whole or in part without first obtaining our consent. We are entitled to assign, novate and sub contract our rights and obligations under the EULA, in whole or in part, at our discretion and without the need for your consent.
5. All notices to be given under the EULA will be in writing in English and delivered by registered post or e-mail at our contact address or e-mail address as provided on the Site and to you at Your Premises or such other post or e-mail address as you may from time to time designate by notice pursuant hereto. Any such notice will be deemed duly received:
   1. if sent by registered post, at 9am on the fifth working day after posting; or
   2. if sent by e-mail, on transmission or if the e-mail is transmitted outside Working Hours, on the first working day after the day of transmission.
6. The rights of either party arising out of any provision of the EULA or any breach thereof will not be waived except in writing. Any waiver by either party of any of its rights under the EULA or of any breach of the EULA will not be construed as a waiver of any other rights or of any other or further breach.
7. All provisions of the EULA are severable and if any of them (or any part of them) are held to be invalid by any competent court the EULA will be interpreted as if such valid provisions (or part of them) were not contained in the EULA.
8. A person who is not party to this EULA shall not have any rights under it pursuant to the Contract (Rights of Third Parties) Act 1999 or otherwise.
9. The EULA will be governed by English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts in respect of any disputes.