These terms and conditions set out the basis upon which customers for the Enterprise Edition of our Mergin Maps software may use that software, along with our and your other rights and obligations with respect to that software. These terms and conditions should be read alongside the applicable order form.
1. Definitions
1.1 In the Agreement:
"Agreement" means this software licence agreement, incorporating these terms and conditions and the Order Form, as it may be updated from time to time;
"API" means the application programming interface for the Software designed for use by licensees of the Software and referenced in the Documentation;
"Charges" means:
(a) the subscription fees specified in the Order Form or, if no subscription fees are specified in the Order Form, the subscription fees specified on the Website; and
(b) the other charges and fees specified in the Agreement;
"Defect" means a defect, error or bug in the Software having a material adverse effect on the functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any use of the Software contrary to the Documentation; and/or
(b) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Documentation;
"Documentation" means the documentation for the Software produced by LCL and made available online by LCL;
"Effective Date" means the date upon which both parties have signed or otherwise formally agreed the Order Form;
"Export Laws" means all applicable laws restricting and/or regulating:
(a) the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information; and/or
(b) the import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);
"Interface Software" means any interface software used by the Licensee for the purpose of enabling an individual to interact with the Software, which may include the QGIS plugin and/or mobile app produced and published by LCL for this purpose;
"LCL" means Lutra Consulting Ltd, a company incorporated in England and Wales (registration number 09460334) having its registered office at 85 Great Portland Street, London W1W 7LT, United Kingdom;
"Licence Year" means a period of 12 months beginning:
(a) on the date that LCL makes the Software available to the Licensee; or
(b) at the end of a preceding Licence Year;
"Licensee" means the person or entity identified as such in the Order Form;
"Order Form" means the digital order form, whether online or offline, supplied or made available by LCL to the Licensee, setting out the particulars of the Agreement, and agreed by the parties in writing;
"Prerequisite Software" means third-party software that is required to enable the Software to function and is identified in the Documentation;
"Software" means the Enterprise Edition of LCL's Mergin Maps software in object code format, excluding the Third-Party Software and the Prerequisite Software;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Third-Party Software" means the software components incorporated into the Software as listed at https://github.com/MerginMaps/server/blob/master/LICENSES/EE-used-libs.json;
"Update" means a hotfix, patch or minor version update to the Software;
"Upgrade" means a major version upgrade of the Software; and
"Website" means the website for the Software at https://merginmaps.com/, and any successor website published by LCL from time to time.
2. Term
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17 or any other provision of the Agreement.
3. Software for download
3.1 LCL shall make the Software available for download by the Licensee, and shall make the Documentation accessible to the Licensee, upon or promptly following the Effective Date.
3.2 Nothing in the Agreement shall give the Licensee or any other person any right to access or use the Software source code or constitute any licence of the Software source code.
4. Licence
4.1 LCL hereby grants to the Licensee from the date of supply of the Software to the Licensee until the end of the Term a worldwide, non-exclusive, non-sublicensable (except as specified below) and non-transferrable licence to:
(a) install and use, via the Interface Software and the API, a single instance of the Software for production purposes;
(b) install and use, via the Interface Software and the API, additional instances of the Software for development and staging purposes;
(c) create and store backup copies of the Software; and
(d) view the Documentation online,
in each case for the business purposes of the Licensee, in accordance with the Documentation and all applicable laws, and subject to the limitations and prohibitions set out and referred to in this Clause 4.
4.2 The Licensee may sublicense the rights granted in Clause 4.1 to an established third-party hosting services company for the purposes of hosting the Software in accordance with the Agreement and subject to the other provisions of the Agreement. Any such sublicence shall automatically terminate upon the termination of the licence in Clause 4.1.
4.3 The Software may only be used:
(a) via the Interface Software by: (i) the officers, employees and contractors of the Licensee; and (ii) other individuals authorised by the Licensee from time to time; and
(b) via the API, by an application controlled by the Licensee.
4.4 The Licensee must only run the Software with the unique identification number provided by LCL, and only at the applicable URL(s) set out in the Order Form.
4.5 The Licensee must not block, limit or tamper with the Software's call-home functionality or any element thereof; and if that call-home functionality is blocked or limited for any reason, the Licensee must promptly following receipt of a request from LCL unblock the functionality or remove those limits as appropriate. Any breach of this Clause 4.5 shall constitute a material breach of the Agreement.
4.6 Save to the extent expressly permitted by the Agreement or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:
(a) the Licensee must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software or Documentation;
(b) the Licensee must not alter, edit or adapt the Software or Documentation;
(c) the Licensee must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software;
(d) the Licensee must not use the Software or Documentation to: (i) directly or indirectly compete with LCL in the market for the provision of GIS data storage and management tools; or (ii) provide general purpose GIS data storage and management services to any third party; and
(e) the Licensee must not embed the Software or Documentation in any other product or service,
and the Licensee must not authorise, permit or facilitate the doing of any of these things by any other person.
4.7 The Licensee shall be responsible for the security of copies of the Software supplied to the Licensee under the Agreement (or created from such copies) and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under the Agreement.
4.8 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from LCL to the Licensee, or from the Licensee to LCL.
5. Third-Party Software and Prerequisite Software
5.1 The Licensee acknowledges that:
(a) the Third-Party Software supplied by LCL with the Software is subject to separate licensing terms, which will apply between the Licensee and the relevant third-party licensor; and
(b) in order to use the Software, the Licensee will need to install and configure the Prerequisite Software.
5.2 LCL shall comply with the licensing terms for the Third-Party Software.
5.3 The Licensee shall be responsible for obtaining, and paying any costs relating to, licences to use the Prerequisite Software.
5.4 The Licensee shall ensure that the computer and networking hardware and software systems of the Licensee that will or may interact with the Software comply, and continue to comply during the Term, with the requirements set out in the Documentation in all material respects.
6. Licence audit
6.1 At any time during the Term or within the period of 12 months following the end of the Term, LCL or LCL's appointed representative may audit the Licensee for the purpose of ascertaining whether the Licensee is complying with the terms of the licences granted under the Agreement.
6.2 LCL must give to the Licensee at least 14 days written notice of an audit. If LCL so notifies the Licensee of an audit, the Licensee must promptly:
(a) answer such written questions as LCL may submit to the Licensee; and
(b) provide to LCL copies of such documents and files as LCL may request,
providing that the audit shall be limited to that information, and those documents and files, the examination of which is reasonably necessary to achieve the purpose specified in Clause 6.1; and the Licensee shall have no obligation to disclose the confidential information of any third party to LCL.
6.3 The Licensee shall provide LCL with all such cooperation as LCL may reasonably request in relation to an audit.
6.4 LCL shall treat as confidential any information disclosed by the Licensee, or otherwise obtained by LCL, in the course of an audit.
6.5 Any audit shall be at the cost of LCL unless the audit demonstrates that the Licensee has breached the terms of any licence under the Agreement, in which case the Licensee shall pay to LCL the reasonable costs of the audit.
7. Support
7.1 The parties may enter into a separate agreement for the provision of support by LCL to the Licensee in relation to the Software.
7.2 Subject to the terms of any such agreement, LCL shall have no obligation to provide support to the Licensee or any user of the Software, whether in relation to the installation, configuration or use of the Software, or otherwise.
8. Maintenance
8.1 The Licensee may be notified by means of the Software of the release during the Term by LCL of an Update or Upgrade, and LCL shall make such Updates or Upgrades available for the Licensee to download via the Website.
8.2 The Licensee shall be responsible for applying Updates and Upgrades to the Software and LCL shall have no obligation under the Agreement to assist the Licensee with respect to the application of Updates and Upgrades (subject to any support contract as referenced in Clause 7).
8.3 The Licensee acknowledges that:
(a) if the Licensee does not apply an Update or Upgrade, that may result in compatibility and/or security issues affecting the Software, and LCL shall not be responsible for such issues or liable with respect to any loss or damage arising out of such issues; and
(b) in the application of Updates and Upgrades, the Licensee should consult and comply with the relevant release notes.
9. Licensee obligations and publicity
9.1 The Licensee warrants that all information provided by the Licensee and set out in the Order Form is true, accurate, complete and, as at the date of signature of the Order Form by the Licensee, current.
9.2 The Licensee must promptly notify LCL of any changes to the information provided by the Licensee and set out in the Order Form.
9.3 The Licensee is solely responsible for creating back-ups of Licensee data stored in and processed by the Software and for establishing, maintaining and where necessary activating suitable data recovery policies.
9.4 The Licensee hereby agrees that LCL may use the name of the Licensee, and the Licensee's current logo from time to time on its websites and in its other marketing materials for the purpose of communicating that the Licensee is a user of the Software.
10. Charges
10.1 All Charges and other amounts stated in or in relation to the Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Licensee to LCL.
10.2 LCL may elect to vary any element of the Charges from the start of any Licence Year by giving to the Licensee not less than 90 days' prior written notice of the variation. If the Licensee does not agree to any such variation, the Licensee must terminate the Agreement in accordance with Clause 17.1.
11. Payments
11.1 LCL shall issue invoices for the Charges with respect to a Licence Year in advance of the Licence Year to which they relate.
11.2 The Licensee must pay the Charges to LCL within the period of 30 days following the issue of an invoice in accordance with this Clause 11, providing that:
(a) if the Order Form provides for an alternative payment period, that alternative period will apply; and
(b) in all cases, LCL reserves the right to make the Software available to the Licensee until such time as the first instalment of the Charges has been paid by the Licensee and received by LCL in cleared funds.
11.3 The Licensee must pay the Charges by bank transfer or by any method specified on the Website from time to time (using such payment details as are notified by LCL to the Licensee from time to time).
11.4 If the Licensee does not pay any amount properly due to LCL under the Agreement, LCL may charge the Licensee interest on the overdue amount at the rate of 10% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
12. Ecommerce laws
12.1 As businesses, LCL and Licensee agree that, with respect to any purchases made via the Website, LCL shall have no obligation to comply with Regulations 9(1), 9(2) or 11(1) of the Electronic Commerce (EC Directive) Regulations 2002 or any corresponding or equivalent EU or EU member state legislation.
13. Warranties
13.1 Each party warrants to the other that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
13.2 LCL shall use reasonable endeavours to ensure that:
(a) the Software will be supplied free from Defects; and
(b) the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs.
13.3 LCL warrants to the Licensee that the Software, when used by the Licensee in accordance with the Agreement, will not infringe the Intellectual Property Rights of any person under English law.
13.4 If LCL reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with the Agreement infringes any person's Intellectual Property Rights, LCL may acting reasonably at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights; or
(b) procure for the Licensee the right to use the Software in accordance with the Agreement.
13.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14. Acknowledgements and warranty limitations
14.1 The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, LCL gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
14.2 The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, LCL gives no warranty or representation that the Software will be entirely secure.
14.3 The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Documentation; and LCL does not warrant or represent that the Software will be compatible with any other software.
14.4 The Licensee acknowledges that LCL will not provide any legal, financial, accountancy or taxation advice under the Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in the Agreement, LCL does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.
15. Indemnity
15.1 The Licensee shall indemnify and shall keep indemnified LCL against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by LCL and arising directly or indirectly as a result of:
(a) any use of the Software contrary to the licensing terms of the Agreement; and
(b) any use of the Software by a third party that is not licensed to use the Software, in circumstances where the Software was obtained by the third party directly or indirectly from the Licensee.
16. Limitations and exclusions of liability
16.1 Nothing in the Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in the Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
16.3 LCL shall not be liable to the Licensee in respect of:
(a) any losses arising out of a Force Majeure Event;
(b) any loss of profits or anticipated savings;
(c) any loss of revenue or income;
(d) any loss of use;
(e) any loss of business, contracts or opportunities;
(f) any loss or corruption of any data, database or software; or
(g) any special, indirect or consequential loss or damage.
16.4 LCL shall not be liable to the Licensee in respect of any loss or damage arising in whole or part, directly or indirectly, out of:
(a) any failure of the Licensee to comply with the Agreement;
(b) any failure of the Licensee to adequately fulfil those responsibilities that the Agreement allocates to the Licensee; and/or
(c) the use of the Third-Party Software or the Prerequisite Software.
16.5 The liability of LCL to the Licensee under the Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) EUR 5,000; and
(b) the total amount paid and payable by the Licensee to LCL under the Agreement in the 12-month period preceding the commencement of the event or events,
providing that this Clause 16.5 shall not apply with respect to loss or damage arising out of any breach by LCL of Clause 13.3.
16.6 The aggregate liability of LCL to the Licensee under the Agreement shall not exceed EUR 25,000.
17. Termination
17.1 Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination, expiring at the end of any Licence Year.
17.2 LCL may terminate the Agreement immediately by giving written notice of termination to the Licensee if the Licensee commits any breach of the Agreement, including any failure to pay any amount due under the Agreement by the due date.
17.3 The Licensee may terminate the Agreement immediately by giving written notice of termination to LCL if LCL commits any material breach of the Agreement, and LCL fails to remedy that material breach within a period of 30 days following receipt of a written notice from the Licensee requiring it to do so.
17.4 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party is or becomes bankrupt or insolvent or unable to pay its debts as they fall due, or if the other party enters into any bankruptcy or insolvency process or proceedings.
18. Effects of termination
18.1 Upon the termination of the Agreement, all the provisions of the Agreement shall cease to have effect, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.2, 4.7, 4.8, 5.3, 6, 9.4, 11.2 to 11.4, 15, 16, 18, and 20 to 29.
18.2 Except to the extent expressly provided otherwise in the Agreement, the termination of the Agreement shall not affect the accrued rights of either party.
18.3 The Licensee shall not in any circumstances be entitled to a refund of Charges upon the termination of the Agreement.
18.4 The licences of the Software and Documentation in the Agreement shall terminate upon the termination of the Agreement; and, accordingly, the Licensee must immediately cease to use the Software and Documentation upon the termination of the Agreement.
18.5 Within 7 days following the termination of the Agreement, the Licensee shall irrevocably delete from all computer systems and media in its possession or control all copies of the Software; and if LCL so requests:
(a) if the Licensee is an individual, the Licensee shall certify LCL; or
(b) if the Licensee is a company or other legal entity, the Licensee shall procure that a director of the Licensee certifies to LCL,
in a written document signed by that person and provided to LCL within 14 days following the receipt of LCL's request, that the Licensee has fully complied with the requirements of this Clause 18.5.
19. Notices
19.1 Any notice given under the Agreement must be in writing and sent by email, whether or not described as "written notice" in the Agreement.
19.2 The parties' contact details for notices under this Clause 19 are as follows:
(a) in the case of notices sent by the Licensee to LCL, info@lutraconsulting.co.uk; and
(b) in the case of notices sent by LCL to the Licensee, the email address specified in the Order Form.
19.3 A notice will be deemed to have been received at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent).
20. Subcontracting
20.1 LCL may subcontract any of its obligations under the Agreement.
20.2 LCL shall remain responsible to the Licensee for the performance of any subcontracted obligations.
21. Assignment
21.1 The Licensee hereby agrees that LCL may assign, transfer or otherwise deal with LCL's contractual rights and obligations under the Agreement.
21.2 Save to the extent expressly permitted by applicable law, the Licensee must not assign, transfer or otherwise deal with the Licensee's contractual rights and/or obligations under the Agreement without the prior written consent of LCL.
22. No waivers
22.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
22.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
23. Severability
23.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
23.2 If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
24. Third-party rights
24.1 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.
24.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
25. Variation
25.1 The Agreement may not be varied except:
(a) from the start of a Licence Year, by LCL giving to the Licensee at least 90 days' prior written notice of the variation; and/or
(b) by means of a written document signed or otherwise agreed by or on behalf of each party.
25.2 If the Licensee does not agree to any variation under Clause 25.1(a), the Licensee must terminate the Agreement in accordance with Clause 17.1.
26. Entire agreement
26.1 The Agreement constitutes the entire agreement between the parties in relation to the licensing and maintenance of the Software and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
26.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
27. Export control
27.1 The Licensee acknowledges that Software may be subject to the Export Laws.
27.2 The Licensee must comply with the Export Laws insofar as they affect that Software.
27.3 Without prejudice to the generality of Clause 27.2, the Licensee:
(a) must not import, export, supply, disclose, transfer or transmit the Software if such import, export, supply, disclosure, transfer or transmission would contravene any embargo or exclusion list applying under the Export Laws; and
(b) must, where applicable, obtain all licences and consents required under the Export Laws for any import, export, supply, disclosure, transfer or transmission by or on behalf of the Licensee of the Software.
28. Law and jurisdiction
28.1 The Agreement shall be governed by and construed in accordance with English law.
28.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
29. Interpretation
29.1 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
29.2 The Clause headings do not affect the interpretation of the Agreement.
29.3 In the Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
