VERSION 2022-10-20

Seldon Technologies Limited (company number 09188032) (“Seldon”) These are the terms and conditions applying to use of the Seldon Software. No other terms and conditions apply.

1. DEFINITIONS AND INTERPRETATION

1.1. In this Agreement (unless the context otherwise requires), the following words and phrases shall have the following meanings: Agreement means this end user licence agreement and the relevant Purchase Order(s).

Authorised Users are those employees, agents and independent contractors of the End User who are authorised by the End User to use the Seldon Software and the Documentation.

Business Day is a day other than a Saturday, Sunday or public holiday in England during the hours of 9am – 5pm;

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.

Documentation is the documents which may be provided by Seldon for the Seldon Software at https://docs.seldon.io/en/latest/, in either printed text or machine-readable form, including the technical documentation, program specification and operations manual.

Effective Date is the later of the date the End User agrees to be bound by this end user licence agreement and the date of receipt by Seldon of the first Purchase Order.

End User is the company, partnership or business agreeing to this end user licence agreement to whom the Seldon Software is to be delivered.

End User Data is the data provided or inputted by the End User, Authorised Users, or Seldon on the End User’s behalf for the purpose of using the Seldon Software or facilitating the End User’s use of the Seldon Software.

Intellectual Property includes, without limitation, patents, inventions, know how, trade secrets and other confidential information, registered designs, copyrights, database rights, design rights, rights affording equivalent protection to copyright, semiconductor topography rights, trade marks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing off.

Maintenance Release means a patch, correction or other modification or addition to the Seldon Software that Seldon makes generally available to its customers for maintenance fixes, error corrections and minor improvements to the Seldon Software, including but not limited to, addressing any security vulnerabilities.

Open-Source Software means any software programs which are licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php).

Purchase Order means a purchase order in respect of the Seldon Software placed by or on behalf of the End User and accepted by Seldon (and excluding any standard terms and conditions included or referred to in the purchase order).

Seldon Software means the software detailed in the Documentation, the Documentation and the Support Services and includes:

• a) any Maintenance Release which is released by Seldon during the Term and which accordingly becomes part of the Seldon Software; and
• b) any other software which Seldon and End User agree should be Seldon Software for the purposes of this Agreement.

Support Services means the standard support services to be provided by Seldon in respect of the Seldon Software as referred to in clause 5 and detailed in Schedule 1.

Term means the term of this Agreement, being the period of time for which the End User has contracted to use the Seldon Software, as set out in the relevant Purchase Order(s).

Territory means the territory specified in the relevant Purchase Order.

2. THE AGREEMENT

2.1. No terms shall apply to the Seldon Software rendered by Seldon to the Customer other than the terms expressly set out or referenced in this Agreement which supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

2.2. In the event of any conflict, the order of precedence shall be these terms and conditions including any documents referred to in them, any schedule to this Agreement and then the Purchase Order(s).

3. GRANT OF LICENCE

3.1. Seldon grants to the End User a non-exclusive, non-transferable licence for the Term commencing on the Effective Date to use the Seldon Software in the Territory.

3.2. In relation to the scope of use:

• a) for the purposes of clause 3.1, use of Open-Source Software shall be permitted upon the terms found at http://www.apache.org/licenses/LICENSE-2.0 which shall be deemed to be incorporated herein by this reference;
• b) for the purposes of clause 3.1, “use of the Seldon Software” means installing and loading the Seldon Software into temporary memory or permanent storage on the relevant network server for distribution to other computers to make it available to the Authorised Users;
• c) the End User may not use the Seldon Software other than as specified in clause 3.1 and clause 3.2 and the Purchase Order(s) without the prior written consent of Seldon;
• d) the End User may make as many backup copies of the Seldon Software as may be necessary for its lawful use. The End User shall record the number and location of all copies of the Seldon Software and take steps to prevent unauthorised copying.

3.3. The End User may not use any information provided by Seldon or obtained by the End User during the Term to create any software whose expression is substantially similar to that of the Seldon Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

3.4. The End User shall not:

• a) sub-license, assign or novate the benefit or burden of this Agreement in whole or in part;
• b) allow the Seldon Software to become the subject of any charge, lien or encumbrance; and
• c) deal in any other manner with any or all of its rights and obligations under this Agreement, without the prior written consent of Seldon, such consent not to be unreasonably withheld or delayed.

3.5. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

3.6. Notwithstanding clause 3.4, a party assigning any or all of its rights under this Agreement may disclose to a proposed assignee any information in its possession that relates to this Agreement or its subject matter; the negotiations relating to it; and the other party, which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 3.6 shall be made until notice of the identity of the proposed assignee has been given to the other party. 3.7. The End User shall:

• a) ensure that usage of the Seldon Software does not contravene the licence metrics identified in the relevant Purchase Order(s);
• b) ensure that the Seldon Software is installed on designated equipment only;
• c) keep a complete and accurate record of the End User’s copying and disclosure of the Seldon Software and its users, and produce such record to Seldon on request from time to time;
• d) notify Seldon as soon as it becomes aware of any unauthorised use of the Seldon Software by any person.

3.8. The End User shall permit Seldon to audit use of the Seldon Software, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the End User is complying with the terms of this Agreement, provided that Seldon provides reasonable advance notice to the End User of such inspections, which shall take place at reasonable times and shall not be more than once in any period of twelve months.

3.9. The End User consents to Seldon (itself or by way of a third party):

• a) collecting and analysing data and other information relating solely to the provision, use and performance of various aspects of the Seldon Software and related systems and technologies;
• b) using that data and information (during and after the Term) to improve and enhance the Seldon Software and for other development, diagnostic and corrective purposes in connection with the Seldon Software; and
• c) sharing that information and data with third party service providers to assist in providing, supporting and improving the Seldon Software.

4. TERM & TERMINATION

4.1. This Agreement shall commence on the Effective Date and shall continue for the Term unless terminated in accordance with the provisions of this Agreement.

4.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

• a) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
• b) the other party becomes insolvent or is otherwise unable to pay its debts as they fall due.

4.3. If Seldon has not received payment in respect of the Seldon Software within 14 days after the due date, and without prejudice to any of its other rights and remedies, Seldon may (without liability to the End User) suspend the End User’s rights in relation to the Seldon Software in whole or in part and Seldon shall be under no obligation to provide any or all of the Seldon Software while the invoice(s) concerned remain unpaid.

4.4. On termination of this Agreement for any reason, the licence granted under this Agreement shall immediately terminate and:

• a) 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;
• b) Seldon may destroy or otherwise dispose of any of the End User Data in its possession; and,
• c) 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.

5. SUPPORT SERVICES

5.1. Seldon will provide the Support Services in respect of the Seldon Software.

5.2. In relation to Maintenance Releases:

• a) Seldon shall from time to time make Maintenance Releases available to the End User without charge; and
• b) if the End User fails to install a Maintenance Release within one (1) month of Seldon notifying the End User that such Maintenance Release is available for installation, Seldon may suspend provision of the Support Services.

5.3. Seldon shall provide sufficient personnel to fulfil its obligations under the terms of this Agreement. The personnel shall be suitably trained and experienced in the support and maintenance of the Seldon Software.

6. INTELLECTUAL PROPERTY RIGHTS

6.1. The End User acknowledges and agrees that Seldon and/or its licensors own all Intellectual Property rights in the Seldon Software. Except as expressly stated herein, this Agreement does not grant the End User any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Seldon Software.

6.2. Seldon confirms that it has all the rights in relation to the Seldon Software that are necessary to grant all the rights it purports to grant hereunder, and in accordance with the terms of this Agreement.

7. WARRANTIES AND INDEMNITIES

7.1. Each party represents and warrants that:

• a) it has the legal power and authority to enter into this Agreement;
• b) it will comply with all applicable laws in its performance under this Agreement; and
• c) there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavourably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfil its obligations under this Agreement.

7.2. Seldon represents and warrants that:

• a) the Seldon Software will perform in all material respects in accordance with the Documentation;
• b) the provision of the Seldon Software and the End User’s use of the same in accordance with the terms herein, shall not infringe the Intellectual Property rights or any rights of any third party.

7.3. The End User acknowledges that it is exclusively responsible for:

• a) reviewing any new Maintenance Releases;
• b) ensuring that the staff of the End User is trained in the proper use and operation of the Seldon Software;
• c) ensuring the security, completeness and accuracy of all inputs and outputs;
• d) making regular backup copies of its data to ensure recovery of its data if the Seldon Software malfunctions; and,
• e) the selection, use of and results obtained from any other programs, equipment, materials or services used in conjunction with the Seldon Software.

7.4. Except as expressly provided in this Agreement, neither party gives any other warranty save as otherwise provided herein and any warranty which might otherwise be implied or incorporated into this Agreement, whether by statute, common law or otherwise, is, insofar, as it is lawful to do so, hereby excluded. The Seldon Software is provided to the End User on an “as is” basis.

7.5. No representation or warranty is given by Seldon that all issues will be fixed, or will be fixed within a specified period of time.

7.6. The End User shall defend, indemnify and hold harmless Seldon 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 the End User’s use of the Seldon Software.

7.7. All references to Seldon in this clause 7 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of Seldon and its associated companies, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Agreement.

8. LIABILITY

8.1. This clause 8 sets out the entire financial liability of Seldon (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the End User arising:

• a) under or in connection with this Agreement;
• b) in respect of any use made by the End User of the Seldon Software or any part of it; and
• c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

8.2. Except as expressly and specifically provided in this Agreement, the End User assumes sole responsibility for results obtained from the use of the Seldon Software by the End User, and for conclusions drawn from such use.

8.3. Seldon shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Seldon by the End User in connection with the Seldon Software, or any actions taken by Seldon at the End User’s direction.

8.4. Nothing in this Agreement excludes the liability of Seldon: for death or personal injury caused by Seldon’s negligence; or for fraud or fraudulent misrepresentation. 8.5. Subject to clause 8.1 and clause 8.2, Seldon 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, cost, damage, liability or expense however arising under this Agreement; and, Seldon’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 this Agreement shall be limited to the total amount received by Seldon in respect of the Seldon Software provided to the End User in the 12 months preceding the date of the relevant claim.

9. CONFIDENTIALITY AND PUBLICITY

9.1. Each party shall, during the Term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any Confidential Information.

9.2. A party’s Confidential Information shall not be deemed to include information that: is or becomes publicly known other than through any act or omission of the receiving party; was in the other party’s lawful possession before the disclosure; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; is independently developed by the receiving party, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.3. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

9.4. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

9.5. The End User acknowledges that the terms of this Agreement are confidential and may not be disclosed by either party without the prior written consent of the other party. Seldon may only refer to the fact that the parties have an agreement in place and may only use the End User’s name in Seldon sales, promotional and marketing materials with the End User’s prior written consent, on a case-by-case basis.

9.6. Seldon acknowledges that the End User Data is the Confidential Information of the End User.

9.7. This clause 9 shall survive termination of this Agreement, however arising.

10. END USER DATA

10.1. The End User shall own all right, title and interest in and to all of the End User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the End User Data. End User shall be responsible for backing up the End User Data and consequently, Seldon shall have no liability for any damage, deletion or loss of End User Data.

10.2. The intention of the parties is that Seldon will not process any personal data (as defined in the Data Protection Act 2018) on the End User’s behalf when performing its obligations under this Agreement. However, if it does so, the parties record their intention that the End User shall be the data controller and Seldon shall be a data processor and in any such case all processing shall be in accordance with the provisions at Schedule 2.

10.3. In relation to any personal data in respect of which Seldon is controller, Seldon undertakes at all times to act in accordance with all applicable legislation and that any such personal data shall be collected, processed and retained in accordance with Seldon’s Privacy Policy which can be found at https://www.seldon.io/privacy/.

11. GENERAL

11.1. Neither party shall be liable to the other if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control provided that the other party is notified of such an event and its expected duration.

11.2. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.3. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy.

11.4. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

11.5. The End User shall not, for the duration of this Agreement, and for a period of six (6) months following termination, directly or indirectly induce or attempt to induce any employee of Seldon who has been engaged in the provision, receipt, review or management of the Seldon Software or otherwise in connection with this Agreement to leave the employment of Seldon.

11.6. 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.

11.7. Each of the parties acknowledge and agree that in entering into this Agreement 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 Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

11.8. Seldon may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement particularly in the case of a merger, acquisition or change of control.

11.9. Nothing in this Agreement 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.

11.10. This Agreement governs the relationship between the End User and Seldon and does not create any third party beneficiary rights.

11.11. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours of a Business Day, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

11.12. This Agreement 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.

11.13. 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims). Each party shall be entitled to enforce any judgement of the courts of England Wales in the courts of any jurisdiction.

Schedule 1 – Data processing provisions

DEFINITIONS

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

EU Law: the law of the European Union or any member state of the European Union.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

DATA PROTECTION

2.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Schedule is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

2.2 The parties acknowledge that for the purposes of the Data Protection Legislation, if in respect of any personal data the parties agree that the End User is the Controller and Seldon is the Processor then they shall also agree the scope, nature and purpose of processing by Seldon, the duration of the processing and the types of Personal Data and categories of Data Subject.

2.3 Without prejudice to the generality of paragraph 2.1, the End User will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Seldon and/or lawful collection of the Personal Data by Seldon on behalf of the End User for the duration and purposes of this agreement.

2.4 Without prejudice to the generality of paragraph 2.1, Seldon shall, in relation to any Personal Data processed in connection with the performance by Seldon of its obligations under this agreement:

• (a) process that Personal Data only on the documented written instructions of the End User unless Seldon is required by Domestic Law or EU Law to otherwise process that Personal Data. Where Seldon is relying on Domestic Law or EU Law as the basis for processing Personal Data, Seldon shall promptly notify the End User of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits Seldon from so notifying the End User;
• (b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the End User, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
• (d) not transfer any Personal Data outside the EEA (which for the purposes of this Schedule shall include the UK) unless the prior written consent of the End User has been obtained and the following conditions are fulfilled:

1. (i) the End User or Seldon has provided appropriate safeguards in relation to the transfer;
2. (ii) the data subject has enforceable rights and effective legal remedies;
3. (iii) Seldon complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
4. (iv) Seldon complies with reasonable instructions notified to it in advance by the End User with respect to the processing of the Personal Data;

• (e) assist the End User, at the End User’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• (f) notify the End User without undue delay on becoming aware of a Personal Data Breach;
• (g) at the written direction of the End User, delete or return Personal Data and copies thereof to the End User on termination of the agreement unless required by Domestic Law or EU Law to store the Personal Data; and
• (h) maintain complete and accurate records and information to demonstrate its compliance with this Schedule and allow for audits by the End User or the End User’s designated auditor and immediately inform the End User if, in the opinion of Seldon, an instruction infringes the Data Protection Legislation.

2.5 The End User consents to Seldon appointing such third-party processors of Personal Data under this agreement as are agreed by the End User (acting reasonably) from time to time. Seldon confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and which Seldon undertakes will reflect the requirements of the Data Protection Legislation. As between the End User and Seldon, Seldon shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Schedule.