Shift
END USER LICENSE AGREEMENT
This END USER LICENSE AGREEMENT ("EULA") applies when you licence the software product named in the Order Form (“the Software”) from Inbibo Limited. These terms form a contract between Inbibo Limited, a company registered in England and Wales with company number 1283 9127 and with registered office situated at 82 St John Street, London, United Kingdom, EC1M 4JN ("Inbibo"), and you, as either an individual, a company or other legal entity ("the Licensee"), and sets out the terms upon which you license the Software and obtain the services of Inbibo.
Please read this EULA carefully before ordering or downloading or using any software products of Inbibo. Your attention is particularly drawn to clause 8 where we limit our liability in respect of the software products.
Inbibo reserves the right to refuse to grant a license or terminate an existing licence previously granted to any Licensee which has failed to pay any sum due to Inbibo in connection with this EULA.
You should print a copy of this EULA for future reference.
Definitions
Unless the context otherwise requires, the following terms shall have the following meanings in this EULA:
Batch Licence: a licence which permits the Licensee to run the Software on a single Device in batch mode only, whether as part of a Render Farm or as a compute offload operation. A separate Batch Licence is required for each Device on which the Software is to be run in batch mode. A Batch Licence may not be used to run the Software in interactive mode.Batch Processing: computation work is distributed to and performed by two or more instances of the Software by way of API calls from a controlling instance of the Software.
Device: an electronic device upon which the Software is designed to operate and function to the standards as described at www.inbibo.co.uk/docs/shift.
Documentation: documentation published by Inbibo in respect of the Software at inbibo.co.uk.
Floating Licence: a licence allocated to a specific Device through a licence server controlled by Inbibo, whereby such licence may be transferred to another specific Device, when the licence is released from the first mentioned Device.
Intellectual Property Rights: (i) copyrights and related rights, patents, inventions, know-how, confidential information, trade secrets, database rights, brands, business names, rights in trade marks and designs (whether registered or unregistered), passing off (ii) applications for registration, and the right to apply for registration, registrations for any of the same, and any renewals, reissues, extensions, continuations or divisions thereof; and (iii) all other intellectual property rights and equivalent or similar forms of protection now or hereafter existing anywhere in the world.
Interactive Licence: a licence which permits the Licensee to run the Software on a Device in interactive mode only. An Interactive Licence may not be used to run the Software in batch mode or on a Render Farm.
Node Locked Licence: a licence which binds to the specific Device upon which it is first activated and may not be transferred, reassigned or redeployed to another Device without the prior written consent of Inbibo.
Non-Commercial Licence: licence whereby use of the Software is limited to use for learning and training purposes only, and may not be used to produce Output for any commercial purpose, whether for money, money's worth or other reward howsoever.
Order Form: the web form used by the Licensee to place an order to licence the Software.
Output: any content, data, or other material created, generated or produced, in whole or in part, through use of the Software, including without limitation rendered images, animations, simulation data, caches, deformation data, and any other technical or visual data produced by the Software.
Personnel: employees, agents and contractors, and recursively, employees and consultants of consultants.
Render Farm: an on-premise or cloud-based cluster of servers which performs computation or rendering tasks, instigated and controlled by API calls from an instance of the Software.
Subscription Period: the period of time which the Software will be enabled to function on the Device, as specified in the Order Form.
Support Days: days which are weekdays, which are not bank holidays in England.
Support Hours: 9.00am to 5.00pm GMT on Support Days.
Support Services: the technical support services provided by Inbibo to the Licensee as part of the Subscription, as further described in clause 5.
Territory: the discrete geographic region(s) specified in the Order Form or where no Territory is specified in the Order Form, Worldwide.
Terms which are not defined in this EULA are defined in the Order Form.
Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce to that thing being done.
Grant and Scope of Licence
In consideration of payment by you of the licence fee set out in the Order Form, and your agreement to abide by the terms of this EULA, Inbibo grants you a non-exclusive, non-transferable licence to use the Software and the Documentation in accordance with the terms of this EULA.
You may:
install and use the Software on a Device within the geographic boundaries of the Territory;
authorise a person physically located within the Territory to use the Software;
use the Software:
for the Subscription Period, which may be automatically renewed as specified in the Order Form;
in conjunction with the licence key issued by Inbibo; and
on the number of Devices specified and/or described in the Order Form; and
on the terms set out in the Order Form.
download, install and use the Software for your internal business purposes only, and in the case of a Non-Commercial Licence, for your personal purposes only and in each case not further or otherwise;
in the case of a Node Locked Licence, the licence key is locked to the Device upon which it is first activated and may not be transferred, reassigned or redeployed to another Device without the prior written consent of Inbibo. Where the Licensee wishes to transfer a Node Locked Licence to a different Device, the Licensee must contact Inbibo at [email protected] to request such a transfer;
in the case of a Floating Licence, provided that the licence key is not used simultaneously on more than one Device at any one time, you may transfer a licence key from one computer to another, as described in the licensing section of www.inbibo.co.uk/docs/shift;
Restrictions
Except as expressly set out in this EULA or as permitted by any local law, you undertake:
not to copy the Software or Documentation except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of backups or operational security;
not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
not to make alterations to or modifications of the whole or any part of the Software, nor permit the Software or any part of it to be combined with or become incorporated in any other software;
not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except in accordance with local law, and you shall not use the Software to create any software which is substantially similar to the Software;
not to access or use the Software with a bot or other automated tool;
to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
to supervise and control use of the Software and ensure that the Software is used by your Personnel in accordance with the terms of this EULA;
to include the Inbibo copyright notice on all entire and partial copies you make of the Software on any medium;
not to use the Software to develop any technology or product that is competitive with the Software; and
not use or access the Software via any communications network or by means of remote access to the Device upon which the Software is installed, except where such access is by the same Licensee accessing their own licensed Device for the purposes of using the Software in accordance with this EULA.
To the extent that local law grants to the Licensee the right to decompile the Software in order to obtain information necessary to render the Software interoperable with other computer programs used by the Licensee, Inbibo hereby undertakes to make that information readily available to the Licensee and the Licensee agrees to make such requests to Inbibo before attempting to decompile the Software. Inbibo shall have the right to impose reasonable conditions such as a reasonable fee for doing so. In order to ensure that the Licensee receives the appropriate information the Licensee must first give Inbibo sufficient details of the Licensee’s objectives and the other software concerned. Requests for the appropriate information should be made to [email protected]
Inbibo uses special techniques, devices and tools to manage permissions to use the Software, prevent abuse of its Intellectual Property Rights and the Licensee agrees to the use of such techniques, devices and tools.
Inbibo acknowledges that the Licensee is the owner of Intellectual Property Rights vesting in Output produced by the Licensee using the Software.
Maintenance Services
During the term of this EULA, Inbibo may from time to time release updates to the Software (“Updates”) to:
correct and/or mitigate the effect of bugs in the Software;
enhance the functionality of the Software; and
introduce new functionality to the Software.
You shall install Updates as soon as possible.
Inbibo may remove functionality from the Software provided that:
where the removal of functionality materially affects the Software as described in the Documentation, Inbibo shall give no less than 90 days notice in writing to the Licensee prior to the removal of such functionality;
where the Licensee holds an annual Subscription, Inbibo shall not remove functionality which materially affects the Software as described in the Documentation during the current Subscription Period without the Licensee's prior written consent, save that the Licensee may continue to use the version of the Software current at the time of the notice referred to in clause 4.3(a) until the expiry of the current Subscription Period;
notwithstanding clauses 4.3(a) and 4.3(b), Inbibo reserves the right to remove functionality from the Software with immediate effect and without notice where such removal is required by reason of:
any applicable law or regulation;
an order of any court or competent authority;
a material security vulnerability in the Software; or
infringement or alleged infringement of any third party's Intellectual Property Rights.
Support Services
Publicly accessible user documentation is available at www.inbibo.co.uk/docs/shift.
Support Services are included as part of the Licensee's subscription and Inbibo shall supply Support Services in accordance with this clause during the Subscription Period.
Support Services are available from the Support Channels, namely:
by email, to [email protected];
at the support portal at www.inbibo.co.uk/support;
Support Requests received outside Support Hours are treated as received on the next Support Day.
Support Services are initiated by requests for support raised by the Licensee (“Support Requests”) by using a Support Channel.
Support Requests must include:
a detailed description of the issue;
the circumstances in which it has arisen;
the circumstances in which the problem may be replicated by Inbibo; and
the Support Services requested to address the issue.
Support Services are limited to non-compliances, which are events in respect of the Software which:
take place on Devices;
materially affect the functionality of the Software as described in the Documentation; and
are inconsistent with the Documentation.
Inbibo may choose to provide support in respect of matters not within the scope of Support Services. Inbibo reserves the right at all times to withdraw such courtesies and/or not continue such courtesies any time.
To receive and/or continue to receive Support Services, the Licensee must supply upon request:
further information and documentation as Inbibo may reasonably request to reproduce and/or replicate the non-compliance so that Inbibo is able to ascertain what the problem is, diagnose the problem and take reasonable steps to supply the Support Services;
the said non-compliance with Documentation; and/or
contact details for the affected user(s).
Support Services are usually initiated on the Support Day a Support Request is received.
Inbibo shall be under no obligation to provide Support Services where:
a version of the Software other than the latest Update made available by Inbibo is used;
non-compliances are connected with changes made to the Software and/or its configuration by any person other than Inbibo;
non-compliances are connected with events whereby deployment of Updates to the Software are prevented and/or inhibited by any person;
the Software is used other than through the user interface in which it was designed to be used;
use of the Software infringes any person’s Intellectual Property Rights, anywhere in the world;
the Software is used for any unlawful purpose and/or unlawfully;
the Support Services requested are connected with user error, user misunderstanding, and/or improper, incomplete, and/or inadequate training in respect of the Software;
defects or irregularities in third party software which directly or indirectly affect the operation or performance of the Software;
rectification of any error caused in whole or in part is caused by third party products and/or services, or where the Software depends on performance of any associated technologies, such as cloud-based services and/or third party IT infrastructure which does not form part of the Software;
Support Requests are not justified and/or warranted in the sole discretion of Inbibo; and/or
the Licensee is in breach of this EULA.
The Licensee is solely responsible for correct operation and maintenance of IT infrastructure and systems required for the Software to function as designed, unless otherwise agreed in writing.
In respect of Support Services, no warranty or statement is made:
that any particular outcome or result will be possible or achievable as a result of Support Services;
that Support Services will be performed to a standard satisfactory to the Licensee in respect of any Support Request.
The Licensee shall appoint a single individual to liaise with Inbibo in relation to the delivery, management and coordination of the Support Services, which at the outset shall be the person submitting the Support Request.
Inbibo reserves the right to manage Support Requests where the volume or frequency of requests from a single Licensee is unreasonable or excessive in the sole discretion of Inbibo. Inbibo reserves the right to decline to supply Support Services in any circumstances. The circumstances may include where Support Services have already been supplied in respect of the Support Request, an advisory in respect of the non-compliance has been published by Inbibo, a resolution of a non-compliance is not able to be resolved by the Inbibo, and/or rectification or amelioration of the non-compliance is outside the control of Inbibo and/or not able to resolved within a commercial timeframe or cost to Inbibo.
If any Support Request does not qualify for Support Services or is otherwise excluded, Inbibo may provide Support Services without further approval from the Licensee in accordance with the rates set out in Inbibo’s then current rate card which is available upon request.
Further Support
Inbibo offers further services subject to further agreement made in writing:
Optional Integration Support, which is a time based form of support, the scope of which is subject to separate written agreement with Inbibo.
Optional Development of Custom Modules, being customised software development services, the scope of which is subject to separate written agreement with Inbibo.
Intellectual Property Rights
You acknowledge that all Intellectual Property Rights in the Software and the Documentation anywhere in the world belong to Inbibo, that rights in the Software are licensed and not sold to you, and that you have no rights in or to the Software other than the permissions to use them in accordance with the terms of this EULA.
You acknowledge that you have no right to access to the Software in source code form save as provided by this EULA.
Limitation of Liability
This EULA sets out the full extent of the obligations and liabilities of Inbibo in respect of the supply of the Software and Documentation. Except as expressly stated in this EULA, there are no conditions, warranties, representations, statements or other terms, express or implied, that are binding on Inbibo. Any condition, warranty, representation, statement or other term concerning the supply of the Software and Documentation which might otherwise be implied into or incorporated in this EULA whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
Nothing in this EULA shall limit or exclude liability of Inbibo for:
death or personal injury resulting from Inbibo’s own negligence;
fraud or fraudulent misrepresentation;
any other liability that cannot be excluded or limited by English law.
You acknowledge that the Software has not been developed to meet your or any person’s individual requirements, including without limitation any particular cybersecurity requirements you might be subject to under any law or otherwise, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
We only supply the Software and Documentation for internal use by your business, and you agree not to use the Software or Documentation for any re-sale purpose.
We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, in connection with this EULA for:
loss of profits, sales, business, or revenue;
business interruption;
loss of anticipated savings;
loss or corruption of data or information;
loss of business opportunity, goodwill or reputation, whether any loss suffered set out in clauses 8.5(a) to clause 8.5(f) are direct or indirect; or
any special, indirect or consequential loss, damage, charges or expenses.
Other than the losses set out at clause 8.5 (for which Inbibo is not liable), the maximum aggregate liability of Inbibo under or in connection with this EULA whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 120% of the Licence Fee for the defective instance of the Software, and clause 8.2 shall not apply to limit such liability.
Consumer Contracts
Where the Licensee is a consumer for the purposes of consumer rights legislation, the Licensee may cancel a licence within 14 days of the original purchase date to obtain a full refund and Licensee will no longer be able to use the Software from the cancellation date. Licensee’s right to obtain a refund will be lost once the Software has been installed.
Refunds are not payable for cancellations made after such date.
Cancellations and requests for refunds can be made by contacting support services at [email protected].
Termination
Inbibo may terminate this EULA:
automatically immediately upon any breach of clause 3;
on 7 days’ notice in writing where any payment due hereunder is more than 14 days past its due date;
with immediate effect by written notice to the Licensee if the Licensee shall commit any material breach of this EULA and, in the case of a material breach which is capable of remedy, the Licensee fails to remedy it within 7 days after receiving written notice and requiring it to be remedied;
if the Licensee cannot pay its debts as they fall due and payable;
if the Licensee gives notice to its creditors or any of them that it has suspended or is about to suspend payment or the other party shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order shall be made or resolution passed for its winding up or an administrator shall be appointed in respect of it, or any step is taken for its winding-up or for an administration order in respect of it, or it shall become insolvent or shall make any voluntary arrangement, composition or assignment with or for the benefit of creditors or has a receiver appointed over all or any part of its assets or it takes or suffers any similar action in consequence of debt or ceases or threatens to cease carrying on business or if any analogous situation to any of the above occurs under the laws of any other jurisdiction; and
suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to any rights or remedies accrued as at the date of termination.
On termination for any reason:
all rights and permissions granted to you under this EULA shall terminate;
the Licensee must immediately cease all activities authorised by this EULA; and
the Licensee must immediately and permanently delete or remove the Software from all computer equipment in its possession or control, in the case of destruction, certify to Inbibo that you have done so.
Export Control
You shall not export, directly or indirectly, any technical data acquired from us under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations in force in the UK, in addition to European Union and United States export laws and regulations (“Export Control Laws”), to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
You are contractually obliged to notify any third party to whom you disclose or transfer any such data or products that these Terms apply and obtain an undertaking in similar terms to that set out above; and if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
Notices
We may update the terms of this EULA at any time on notice to you in accordance with this clause 12. Your continued use of the Software and Documentation following the deemed receipt and service of the notice under clause 12.3 shall constitute your acceptance to the terms of this EULA, as varied. If you do not wish to accept the terms of the Licence (as varied) you must immediately stop using and accessing the Software and Document on the deemed receipt and service of the notice.
If Inbibo has to contact you, Inbibo will do so by email or by pre-paid post to the address you provided in accordance with your order or registration of the Software.
Note that any notice:
given by Inbibo to you will be deemed received and properly served 24 hours after it is first posted on the Inbibo website, 24 hours after an email is sent, or three days after the date of posting of any letter from within the United Kingdom; and
given by you to Inbibo will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter, provided it is posted from within the United Kingdom.
In proving the service of any notice, it will be sufficient to prove, in the case of posting on the Inbibo website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.
Events outside our Control
We will not be liable or responsible for any failure to perform or delay in performance of any of the obligations of Inbibo under this EULA that is caused by an Event outside our Control. An Event outside our Control is defined below in clause 13.2.
An Event outside our Control means any act or event beyond the reasonable control of Inbibo, including without limitation failure of public or private telecommunications networks.
If an Event outside our Control takes place that affects the performance of the obligations of Inbibo under this EULA:
our obligations under this EULA will be suspended and the time for performance of the obligations will be extended for the duration of the Event outside our Control; and
Inbibo will use its reasonable endeavours to find a solution by which its obligations under this EULA may be performed despite the Event outside our Control.
Personal Data
Under data protection legislation, Inbibo is required to provide you with certain information about who Inbibo is, how it processes the personal data of those individuals who use the Software and the Documentation and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in www.inbibo.co.uk/legal/privacy-policy and it is important that you read that information.
General
Inbibo may transfer its rights and obligations under this EULA to another organisation, but this will not affect your rights or obligations of Inbibo under this EULA.
You may only transfer your rights or your obligations under this EULA to another person if Inbibo agrees in writing.
This EULA constitutes the entire agreement between Inbibo and you, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this EULA.
If Inbibo fails to insist that you perform any of your obligations under this EULA, or if Inbibo do not enforce its rights against you, or if Inbibo delay in doing so, that will not mean that Inbibo has waived its rights against you and will not mean that you do not have to comply with those obligations. If Inbibo does waive a default by you, Inbibo will only do so in writing, and that will not mean that Inbibo will automatically waive any later default by you.
Each of the terms of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
This EULA, its subject matter and its formation including any non-contractual disputes or claims are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.
