1.1 These terms and conditions of this Educational Entity License (“the License”) are the terms on which Sapienza Consulting Limited (“the Company”) provides services to its educational entity customers. In this License the definitions in the Definition Schedule shall apply. This License contains the terms and conditions relating to
(a) the licensing terms for the Software; and
(b) specific Services to be provided by Sapienza Consulting Limited to the Customer for the Software.
1.2 The Company shall be entitled to amend the License at any time by giving a minimum of 30 days of notice to the Customer before the changes take effect, such notice to be given by email. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Company no later than 30 days from the date of the notice (time being of the essence). The Customer shall not be entitled to any refund and shall remain liable for any charges previously due. Failure to give such notice of termination shall be deemed acceptance of the new License.
1.3 No offer placed by the Customer shall be considered accepted by the Company unless the Company has issued a confirmation to this extent (“Contract Confirmation“). Upon such acceptance, a contract for the supply of software and services, together with the relevant accepted Contract Confirmation and any attachments, will be established (“Contract“).
1.4 In the event of any conflict between this License and the Contract Confirmation, the License shall prevail, unless expressly agreed otherwise by both parties in writing. It shall also prevail over any terms or conditions contained, or referred to, in the Customer’s purchase order, or other document supplied by the Customer.
1.5 The Services shall be provided in relation to the software selected and identified in the License and in the Contract Confirmation, such services and software being “Services” and “Software” under the Contract.
1.6 This License only applies to the free Academic Package and the two-day workshops mentioned below in clause 2.2. The Company’s standard terms of business shall apply to all other software and services.
2 LICENCE TERMS
2.1 The Company grants to the Customer a non-exclusive, non-transferable, revocable licence to use the Software for academic purposes only for the number of permitted Users specified in the Contract Confirmation. Should the Customer wish to use the Software for income-generating activities, it shall seek prior approval from the Company.
2.2 To its university customers, the Company offers an Academic Package, including the Software license, Hosting Services and Basic Support, free of charge for the Initial Period. For Further Periods, the rates set out in the Contract Confirmation apply. However, the Customer can also receive the Academic Package free of charge for each Further Period by fulfilling the conditions of one of the Options below.
Option 1: the Customer provides the Company with at least two of the following before the end of the previous Period (Initial Period or Further Period):
(c) prepare and publish (by co-authoring with the Company a paper about the ECLIPSE software suite and its use. This paper shall be presented at a conference identified by the Company (the Company will cover conference costs);
(d) provide structured formal feedback about the use of the ECLIPSE software suite in CubeSat programs and/or other areas in which the Software is employed by the Customer;
(e) document in dedicated manuals how the ECLIPSE software suite is used in CubeSat and/or other projects by the Customer;
(f) publish on a blogging/social platform of the Company (to be agreed later) best practices and/or short articles and/or feedback and tips about the use of the ECLIPSE software suite in CubeSat projects (at least once a month, circa 400 – 500 words);
(g) allow the Company to promote its space sector job openings and internship opportunities through its available channels reaching the student population of the Customer;
this list is not exhaustive, which means that other items can be negotiated and confirmed in the Contract Confirmation.
Option 2: once per Further Period, the Customer orders and pays for a two-day workshop concerning the ECLIPSE software suite (at the rates set out in the Contract Confirmation, payment term 30 days from invoice).
2.3 The Company does not warrant that the use or operation of the Software or provision of the Services will be uninterrupted or error-free. The Service will be provided on a reasonable endeavours basis.
PART A – BASIC SUPPORT TERMS
3.1 The Basic Support shall include one (1) day training in the use of the Software modules JAIL and PAM only at the Customer’s premises.
3.2 The Company shall provide the Customer with the following basic support services in relation to the Software (“Basic Support“):
3.3 E-mail Support and Tracking System
If the Customer believes that the Current Release fails to conform to any part of the Specification the Customer (by acting through the Customer’s Representative or any other individuals authorised by the Customer) shall notify the Company by e‑mail or login into the designated tracking system of the defect, error or non-compliance (“Support Issue”) in question and provide the Company with a documented example of such Support Issue. Such support shall be available in accordance with the remainder of Article 3 of this Part A below.
Where the Customer wishes to notify the Company in accordance with Article 3.3 it shall contact the Company by E‑Mail or use the Tracking System. This will be available during Business Hours, which are for the purposes of this Agreement the hours between 8.30 a.m. and 5.30 p.m. CET on a Business Day.
E-mail to the Company E‑mail Support Address (or login and report in the prescribed tracking system) and a support consultant will contact the Customer.The Company E‑mail Support Address is: Eclipsefirstname.lastname@example.org. A reference number will automatically be allocated to the message for tracking purposes.
3.6.1 When notifying the Company Support Centre by e‑mail or via the designated tracking system, the Customer must prepare a succinct description of the problem which accurately describes the problem to the Company.
3.6.2 If the Company’s support representative does not understand the problem, the Customer’s Representative will become involved. If the Customer’s Representative is involved and the Company’s support representative still does not adequately understand the problem the Customer will re‑assess the problem and, having carried out a further investigation, prepare a new description of it.
3.7 The foregoing error correction service shall not include the provision of Basic Support in respect of defects or errors resulting from the Customer using the Software in a way that is in conflict with the Software Documentation or any other instructions and recommendations given by the Company concerning the use of the Software.
3.8 Basic Support shall not under any circumstances include any hardware, electrical or other environmental work.
(a) The Company may deliver to the Customer a Release of the Software which the Company shall from time to time make generally available to its licensees and the Customer shall use such new Release promptly. Once accepted, such Release shall become the Current Release and the Customer shall have no right to use the previous Release.
(b) In reasonable time prior to the delivery of a new Release the Company shall make available to the Customer all amendments to the Specification and the Software Documentation which are necessary to describe the operability and the facilities and functions of the new Release.
(c) The Customer may notify the Company of a Support Issue in the Software, in which case the Company shall verify such Support Issue. The Company shall in its sole discretion determine whether to issue a Patch for any Support Issue notified to it by the Customer or as otherwise may be identified by the Company. If the Company create such a Patch they will offer it to the Customer for use with the Software.
3.10 Customer Obligations
During the continuance of this Agreement the Customer shall:
(a) use only the Current Release and Patches strictly in accordance with Article 3.9 above;
(b) ensure that the Software and the Hardware and Software Platform or programs used with the Software are used only in accordance with the Software Documentation and by competent trained employees only or by persons under their supervision;
(c) make as many back-up copies of the Customer’s databases and computer records as may be necessary and as regularly as the Customer deems necessary for its academic activities;
(d) not alter or modify the Software or the Software Documentation in any way whatever nor permit the Software to be combined with any other programs;
(e) co-operate fully with the Company’s personnel in the diagnosis of any error or defect in the Software or the Software Documentation;
(f) provide continuous and uninterrupted remote access to the Company or its employees or subcontractors to the Software through any firewalls or any other barriers protecting the Software as required by the Company for the purpose of providing the Services.
PART B – HOSTING SERVICES
3.11 The Company shall provide hosting services (“Hosting Services”) on the following terms for the Software identified in the Contract Confirmation:
(a) in addition to the obligations of the Customer as otherwise specified in the Contract, the Customer represents and warrants that it shall be solely responsible for ensuring that any Customer’s Data do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, offensive, defamatory, threatening, menacing, or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”);
(b) the Customer represents and warrants that it shall use the Hosting Services in a matter consistent with all applicable laws and regulations;
(c) the Customer acknowledges that the Company has no control over any Customer’s Data stored by the Customer and does not purport to monitor such Customer’s Data. The Company has the right (but not the obligation) to cease hosting any Customer’s Data where it reasonably suspects such Customer’s Data is Inappropriate Content. The Company shall notify the Customer if it becomes aware of any allegation that any Customer’s Data may be Inappropriate Content;
(d) the Customer shall indemnify the Company against all damages, losses and expenses arising as a result of any action or claim that the Customer’s Data constitutes Inappropriate Content;
(e) the Customer acknowledges that it may be necessary for either the Company or its service provider to maintain the node at which the Software is hosted from time to time (“Scheduled Maintenance”) and that the Hosting Services will not be available during such Scheduled Maintenance. The Company shall use reasonable efforts to provide, where reasonably practicable, at least 1 Business Day’s notice in advance of any Scheduled Maintenance being carried out;
(f) the Hosting Service is not a back-up service, and the Customer is solely responsible for backing up its own Customer’s Data;
(g) the Customer shall report any faults in the Hosting Service in the manner specified for Basic Support;
(h) the Customer acknowledges that the Company is dependent on third party subcontractors in providing the Hosting Services. The Company shall seek to ensure availability of the Hosting Services subject to the terms of the Company’s agreements with its third party hosting services subcontractors from time to time; and
(i) on termination of the Contract for any reason, the Company may delete any of the Customer’s Data without liability.
4.1 The Software licence shall commence on the Commencement Date and shall continue for the Initial Period. On expiry of the Initial Period, the licence shall automatically renew for Further Period(s) unless either party has given to the other party written notice to terminate at least 60 days prior to expiry of the Initial or Further Period.
4.2 The maximum duration of this License is three years, calculated from the Commencement Date.
5 RESPONSIBILITIES and liabilities
5.1 The Customer shall indemnify the Company against any liabilities, losses, damages, costs (including legal fees) and expenses suffered, incurred by or awarded against the Company as a result of:
(a) the Customer’s breach of this Contract; or
(b) any negligent or wrongful act or omission of the Customer, its officers, employees, students, contractors or agents; or
(c) the Customer’s possession or use of the Software outside the scope of the Contract; or
(d) any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with any breach by the Customer of the terms of any Third Party Licences.
5.2 Considering that the Software and Services are provided free of charge, the Company shall bear no liability whatsoever except for death or personal injury, fraud or fraudulent misrepresentation or for other instances where liability cannot be excluded by law.
6.1 Each party shall keep in strict confidence all technical or commercial know-how, processes, specifications or initiatives which are of a confidential or (business) sensitive nature and have been disclosed to it by the other party, its officers, employees, agents or representatives, and any other confidential information concerning the disclosing party’s business, any source or object code, the Company’s clients, service providers, financial information, the existence and terms of this Contract or any information relating to each party’s research, development or business/academic activities (“Confidential Information“).
6.2 The receiving party shall not use or disclose any such information for any other purpose except to perform its obligations under the Contract, and may only disclose such Confidential Information to its Affiliates, officers, employees, or subcontractors (“Associates“) who need to know such Confidential Information for the purpose of performing obligations under the Contract and provided that:
(a) it informs such Associates of the confidential nature of the Confidential Information before disclosure; and
(b) it is responsible for such Associates’ compliance with the confidentiality obligations set out in this Article 6 and shall obtain from such Associates duly binding agreements to maintain in confidence the Confidential Information to be disclosed.
7 Data Processing
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligation under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Company is the Data Processor in respect of Personal Data processed by the Company in the course of performing this Contract. Schedule 1 sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has a lawful basis (including any and all necessary consents and notices) in place to transfer the Personal Data to the Company and enable the Company to lawfully process the Personal Data for the duration and purposes of this Contract.
7.4 Without prejudice to the generality of clause 7.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under this Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Company is required by the laws of (i) any member of the European Union; (ii) the United Kingdom; or (iii) the European Union applicable to the Company to process Personal Data. Where the Company is relying on the laws of (i) any member of the European Union; (ii) the United Kingdom; or (iii) the European Union as the basis for processing Personal Data, the Company shall promptly notify the Customer of this before performing the processing required by such applicable laws unless those applicable laws prohibit the Company from so notifying the Customer;
(b) ensures that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of the 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;
(d) assist the Customer, at the Customer’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;
(e) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data;
(g) shall make available to the Customer a list of any sub-contractors and service providers (see Schedule 1) engaged in the processing of the Customer’s Personal Data and include in any contract with such sub-contractors and service providers who process Personal Data on the Customer’s behalf, provisions similar to those in this clause 7; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for audits for this purpose by an independent auditor selected by the Customer or otherwise acceptable to the Customer (acting reasonably), at the Customer’s cost: (i) giving the Company reasonable prior notice of such information request, audit and/or inspection; (ii) ensuring that all information obtained or generated by the Customer or its auditor(s) in connection with such information request, audit and inspection is kept strictly confidential (save for disclosure required by applicable law); (iii) ensuring that the audit or inspection is undertaken during normal business hours of the Company, with minimal disruption to the Company’s business, the Company’s sub-processors’ business and the business of other customers of the Company; and (iv) paying the Company’s reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.
7.5 The Company only processes and/or transfers, or otherwise directly or indirectly discloses, any Personal Data in or to countries outside the European Economic Area or the United Kingdom, or to any international organisation upon prior written agreement with the Customer or upon request of the Customer.
7.6 The Customer hereby consents to the Company’s use of sub-contractors and service providers in accordance with clause 7.3(g). The Company shall give the Customer not less than 30 days’ written notice of a change in the list of sub-contractors and/or service providers to give the Customer an opportunity to object to such change. If the Customer objects to the proposed change it may terminate the Contract with immediate effect. Failure to give such notice of termination shall be deemed acceptance of the change.
However, the Company cannot be considered a Controller if it does not have access to this data based on the Contract and the practical arrangements between the parties.
7.8 The Customer shall defend, indemnify and hold harmless the Company against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, any compensation paid to Data Subjects, demands, and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with a breach by the Customer of its obligations under clause 7.
8 Intellectual property rights
8.1 All intellectual property rights and all other rights in the Software and any Company Materials shall be owned by the Company.
8.2 The Company shall have ownership of the data of statistical nature which is extractable and of the data on the usage of the Software.
9.1 The Company may at any time, at its convenience, terminate the Contract by giving three (3) months’ notice to the Customer.
9.2 The Company may at any time terminate this Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
9.3 Either party shall have the right to terminate the Contract:
(a) if the other party commits any material breach of this Contract which, if capable of remedy, is not cured within thirty (30) days of receipt of written notice; or
(b) if the other party experiences a material change to the negative in its financial condition or if in relation to the other party there occur in any jurisdiction any events or processes (by whatever name called) equivalent or similar to bankruptcy procedures.
9.4 On termination or at the end of the Contract howsoever arising the Customer’s right to receive the Services and the Software Licence shall cease automatically and the Company may delete any of the Customer’s Data without liability.
9.5 As soon as reasonably practicable following termination or the end of the Contract, each party shall return to the other party all material containing Confidential Information belonging to the other or at the request of the other destroy all copies of such material and provide written confirmation of such destruction. Furthermore, on termination, each party shall cease using Confidential Information belonging to the other and the Customer shall cease using the Software and the Software Documentation.
Subject to any other provision in this Contract, neither party shall make any statement nor disclose to any person information which relates to or is connected with this Contract or the matters contained in it, without the prior written approval of the other party.Notwithstanding the foregoing, the Company may name the Customer as its customer in a general context and may also use the Customer’s name in publicity, marketing, advertising releases and other material prepared by or on behalf of the Company which makes reference to the Customer as a specific user of specific products or services of the Company.
11.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, the validity and enforceability of the other provisions of the Contract shall not be affected. In this case, the provision (or part-provision) found illegal, invalid or unenforceable shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.2 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
11.3 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery, commercial courier or e-mail to the other party. The notice shall be delivered to the address and the person specified in the Contract, or as otherwise specified by the relevant party in writing to the other party.
12 Governing law and jurisdiction
The laws of England and Wales shall govern the Contract 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) and the parties hereby submit to the non-exclusive jurisdiction of the courts of England.
The definitions and rules of interpretation in this Definitions Schedule apply in this Contract:
|“Business Day”||means any day other than a Saturday, Sunday or public or national bank holiday in the UK or Holland;|
|“Commencement Date”||shall mean the date of acceptance by the Company of the Customer’s offer in accordance with Article 1.2 or (if different) the date stated as the commencement date in the Contract;|
|“Company”||shall mean Sapienza Consulting Limited registered under company number 02986023 whose registered office is at 61 Rodney Street, Liverpool, Merseyside, L1 9ER, United Kingdom;|
|“the Current Release”||the most recent release of the Software from time to time implemented by the Company or, if no new or improved release has been implemented with the Customer, the Software;|
|“Customer’s Data”||data owned by the Customer and input by the Customer into the Software;|
|“Customer’s Representative”||shall be the individual(s) listed in the Contract Confirmation who are entitled to contact the Company for a request for Support Services;|
|“Data Controller”||shall have the same meaning given to that term (or the term controller) as set out in the Data Protection Legislation;|
|“Data Processor”||shall have the same meaning given to that term (or the term processor) as set out in the Data Protection Legislation;|
|“Data Protection Legislation”||shall mean all applicable laws from time to time in force relating to the protection of personal information, which may including the UK Data Protection Act 2018, the UK Privacy and Electronic Communications (EC Directive) Regulations 2003 and the General Data Protection Regulation ((EU) 2016/679), and any applicable laws substituting, re-enacting or replacing any of the foregoing, as amended or updated from time to time;|
|“Data Subject”||shall have the same meaning given to that term as set out in the Data Protection Legislation;|
|“Further Period”||means each 12-month period from the end of the Initial Period ;|
|“Hardware and Software Platform”||the hardware, software, operating systems and any other computer systems or equipment recommended by the Company from time to time in writing;|
|“Initial Period”||means the period of 12 months from the Commencement Date;|
|“Patch”||means a piece of code developed to remedy any bugs or issues with the Software;|
|“Personal Data”||shall have the same meaning given to that term as set out in the Data Protection Legislation;|
|“Release”||any release of the Software that corrects faults or otherwise amends the Software issued by the Company from time to time but which does not add functionality or upgrade the Software;|
|“Software”||the modules for the software known as ECLIPSE as identified in the Contract developed by and licensed by the Company which shall be licensed to the Customer by the Company in accordance with the licensing model specified in the Contract;|
|“Software Documentation”||the instruction manuals, user guides and other supporting material to explain and assist with the use of the Software as provided to the Customer by the Company (together with any supplemental instructions which may from time to time be supplied by the Company or any manuals or instructions replacing the same);|
|“Third Party Licence”||means any licences relating to any open-source software, including any proprietary Third-Party Software licences which are necessary to enable the Customer to use the Software;|
|“User”||means any employee, student, subcontractor, agent or representative of the Customer who is permitted by the Customer to use the Software in accordance with these Conditions for the Customer’s own internal academic purposes;|
SCHEDULE 1 – Data Protection
|Scope and purpose of processing:||Personal Data contained in the Customer’s Data that the Company processes for providing the Services as identified in the Contract.|
|Nature of processing:||The Company will process the Customer’s Personal Data for the purpose of providing the Services to the Customer in accordance with this Contract.|
|Duration of processing:||Duration of this Contract.|
|Types of Personal Data:||Data relating to individuals provided to the Company by the Customer using the Services.|
|Categories of Data Subjects:||Data Subjects being individuals whose data has been provided to the Company by the Customer using the Services.|
|Sub-Processors:||OVH Ltd (United Kingdom, hosting services), NU-IT SASU (France)|