1. Interpretation
1.1. In these Conditions the following definitions apply, unless the context requires otherwise: Affiliate means any person(s) which (i) Controls the relevant other person; or (ii) is Controlled by such relevant other person; or (iii) is Controlled by such person(s) as is referred to in (i), but only whilst such person(s) so Controls or is so Controlled. Control means the power over another person (whether by means of holding shares, possessing voting power or exercising contractual powers in or over that or any other person) to ensure that such other person’s affairs are conducted in accordance with the wishes of the person holding the power. Controls and Controlled will be construed accordingly. Business Day means a day other than a Saturday, Sunday or bank or public holiday in England, or a day falling between Christmas Day and the following New Year’s Day (each on the day as celebrated in England). Conditions means Atlas Merlin’s terms and conditions of licence set out in this document. Confidential Information means all secret or not generally known information and/or information which is not easily accessible to others and/or of a commercially sensitive nature, disclosed or made available in any way by one party or any of its Affiliates (Discloser) to the other party or to any of its Affiliates (Recipient) in connection with the Contract, including (in the case of Atlas Merlin’s information) information relating to any and all of the Software or any of its constituent parts, and, in relation to each party, the existence and terms of the Contract. Contract means the agreement between Atlas Merlin and Customer for the licence of the Software incorporating these Conditions and the Order. Customer Data means all data generated by, collected by, or input into the Software in the course of Customer’s use of the Software, including images, video, sensor readings, detection events, and operational logs. Documents means any user instructions for the Software in human-readable or machine-readable forms supplied by Atlas Merlin. IP means patents, utility patents, trade marks, copyright, database rights, design rights, registered designs, trade secrets, know-how (including inventions), improvements, discoveries and all other intellectual property and/or industrial property rights (in each case whether registered or unregistered or registrable or unregistrable) and including applications or rights to apply for them and together with all extensions and renewals of them (including supplementary protection certificates), and (in each case) all rights and forms of protection having equivalent and similar effect anywhere in the world. Order means the order signed by Atlas Merlin and Customer. Software means the software and all associated components licensed to Customer as specified in the Order, including without limitation any code, machine learning models, trained weights, algorithms, configurations and Documents. VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the supply of goods and/or services. Other defined terms referred to in these Conditions but not defined herein have the meanings ascribed to them in the respective Order.
1.2. In these Conditions, unless the context requires otherwise:
1.2.1. any terms defined in the Order have the same meaning in these Conditions;
1.2.2. any headings to any conditions in these Conditions are included for convenience only and will have no effect on the interpretation of the Conditions;
1.2.3. a reference to a party includes that party’s successors and permitted assigns;
1.2.4. a reference to legislation (including any subsidiary legislation) includes any modification, amendment, extension, consolidation, re-enactment and/or replacement of such legislation in force from time to time;
1.2.5. a reference to a person includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.6. a reference to the word including and similar words will be construed without limitation and words in any list will be construed independently of each other; and
1.2.7. a reference to writing or written includes any method of reproducing words in a legible and non-transitory form, including email.
1.3. If there is a conflict between the Conditions and the Order, the Order will prevail.
2. Application of these Conditions
2.1. These Conditions apply to and form part of the Contract between Atlas Merlin and Customer. They supersede any previously issued terms and conditions of purchase or supply. No terms or conditions endorsed on, delivered with, or contained in Customer’s purchase conditions, order, confirmation of order, specification or other document will form part of the Contract, except to the extent that Atlas Merlin otherwise agrees in writing.
2.2. No variation of these Conditions or to an Order or to the Contract will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Atlas Merlin.
2.3. Atlas Merlin may modify these Conditions from time to time. Atlas Merlin will notify Customer if Atlas Merlin makes modifications that materially change Customer’s rights. Customer’s continued use of the Software after the effective date of an updated version of the Conditions will indicate Customer’s acceptance of the Conditions as modified.
3. Ownership and Licence
3.1. Atlas Merlin grants, subject to the terms of the Contract, to Customer a limited, non-exclusive, non-sublicensable, non-transferable, worldwide right during the Contract Period to use, for any purpose related to its and its Affiliates’ respective businesses, (a) the Software solely on Devices; and (b) the Documents in connection with the Software and the Devices.
3.2. Atlas Merlin will deliver the Software to Customer in accordance with the delivery method specified in the Order. Customer will be responsible for the installation and operation of the Software in accordance with the Documents, except to the extent otherwise specified in the Order.
3.3. Customer will not, without Atlas Merlin’s prior written approval:
3.3.1. allow any person other than a representative of Atlas Merlin to modify or maintain any part of the Software;
3.3.2. give access to the Software through any network of computers to users who are not employees or agents of Customer or its Affiliates;
3.3.3. make adaptations or variations of the Software; or disassemble, decompile, reverse translate or in any other manner decode the Software, except as permitted by law.
3.4. The IP in the Software and the Documents are, and will remain, the property of Atlas Merlin or the appropriate third-party rights-owner(s), if any, and Atlas Merlin reserves the right to grant a licence to use the Software or the Documents to any other party or parties, and Customer acquires no rights in or to them, other than those expressly granted by the Contract.
3.5. Customer may make such copies of the Software as are reasonably necessary for use in accordance with the Contract and for the purposes of backup and security. Customer has no right to make, or authorise the making of, any other copies of the Software. Atlas Merlin will at all times own all copies of all or any part of the Software. For copies recorded on a tangible medium, Customer will place on each copy of all or any part of the Software a clearly visible label indicating that the copy is the property of Atlas Merlin, and reproducing Atlas Merlin’s proprietary rights notice. For electronic copies, Customer will ensure that all proprietary notices contained in the Software will be maintained in such copies and will display, when the Software is run, in the same way as in the case of the Software as supplied by Atlas Merlin. Customer will keep all copies of the Software in a secure place when not in use and will, at all times, keep all such copies in its possession or control.
3.6. The Software may include third-party open-source components. Customer agrees to comply with the terms of any open-source licences applicable to such components, copies of which are made available with the Software or on request. Customer will indemnify and hold Atlas Merlin harmless against any loss or damage that it may suffer or incur as a result of Customer’s or any of Customer’s Affiliates’ breach of such terms.
3.7. Customer will prevent any infringement of the IP in any and all of the Software and the Documents and will promptly report to Atlas Merlin any such infringement that comes to its attention.
3.8. Neither party will in any circumstances export, directly or indirectly, any technical data acquired from the other party under the Contract (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations to any country for which any government or any agency of it at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
3.9. During the Contract Period and for a period of six (6) months after its expiry or termination (howsoever terminated) Customer will not, without the prior written consent of Atlas Merlin, directly or indirectly, solicit the employment of any person who is employed by Atlas Merlin and with whom Customer has had contact in connection with the Contract.
4. Payment
4.1. Customer will pay the Licence Fees as set out in the Order. At the same time a Licence Fee is due Customer will report to Atlas Merlin the number of Devices with which any of Customer and its Affiliates are using the Software. The Licence Fees and all other payments under the Contract are stated net of tax. Customer will, in addition, pay to Atlas Merlin the amount of any tax, duty or assessment, including any applicable VAT, which Atlas Merlin is obliged to pay and/or collect from Customer in respect of any supply under the Contract (other than tax on Atlas Merlin’s income). Each party is liable for its bank’s fees.
4.2. If Customer fails to make any payment due to Atlas Merlin under the Contract within five (5) Business Days of the due date for payment, then, without limiting Atlas Merlin’s other remedies:
4.2.1. Customer will pay interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer will pay the interest together with the overdue amount;
4.2.2. Customer will, in addition, pay a fixed late payment charge to cover Atlas Merlin’s administrative and recovery costs, calculated as follows:
- £40 for invoices up to £999.99
- £70 for invoices between £1,000 and £9,999.99
- £100 for invoices of £10,000 or more
4.2.3. Atlas Merlin may suspend its work under the Contract until payment of the overdue amount, interest, and the fixed late payment charge has been made under conditions 4.2.1 and 4.2.2.
4.3. Atlas Merlin may increase the Licence Fee with effect from the day after the end of the Initial Period or any anniversary of such date by giving Customer at least three (3) months’ notice before such date.
4.4. Reasonable out-of-pocket expenses may be charged by Atlas Merlin on production of reasonable evidence of expenditure to Customer.
4.5. Customer will pay all sums that it owes to Atlas Merlin under the Contract without any set-off, counterclaim, deduction or withholding of any kind, except where Customer is required by law to make such deduction or withholding, in which event Customer will in addition pay to Atlas Merlin such amount as will result in the net amount received by Atlas Merlin being equal to the amount which would have been received by Atlas Merlin had no such deduction or withholding been made.
4.6. Customer will permit and will ensure that each of its Affiliates permits Atlas Merlin or its agents during the Contract Period and for six (6) months afterwards to access Customer’s and/or its Affiliates’ premises and records to verify which Devices the Software has been used with and the accuracy of the reports provided under condition 4.1. If any audit reveals a discrepancy of more than five percent (5%) in any report supplied under condition 4.1 to the detriment of Atlas Merlin, Customer will reimburse Atlas Merlin for the costs of that audit and pay any accrued underpayment, together with any interest accrued.
5. Confidentiality and Publicity
5.1. Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under the Contract (Permitted Purposes).
5.2. In relation to Customer’s Confidential Information, Atlas Merlin will treat it as confidential and will not divulge any such Confidential Information to any person, except to its own employees and then only to those employees who need to know it for the Permitted Purposes. Atlas Merlin will ensure that its employees are aware of, and comply with, this condition 5.
5.3. In relation to Atlas Merlin’s Confidential Information:
5.3.1. Customer will treat as confidential all Confidential Information of Atlas Merlin contained or embodied in the Software or Documents, or otherwise supplied to Customer during the performance of the Contract;
5.3.2. Customer will not, without the prior written consent of Atlas Merlin, divulge any part of Atlas Merlin’s Confidential Information to any person other than employees of Customer or any of its Affiliates who need to know it for the Permitted Purposes.
5.3.3. Customer undertakes to ensure that the persons mentioned in condition 5.3.2 are made aware, before the disclosure of any part of Atlas Merlin’s Confidential Information, that the same is confidential and that they owe a duty of confidence to Customer and that there are restrictions on its use, in terms similar to condition 5.3.1 (which Customer will ensure are adhered to).
5.4. The restrictions imposed by condition 5.1, condition 5.2 and condition 5.3 will not apply to the disclosure of any Confidential Information which:
5.4.1. is now in, or subsequently comes into, the public domain otherwise than as a result of a breach of this condition 5 (except that any compilation of otherwise public information in a form not publicly known will still be treated as Confidential Information);
5.4.2. before any negotiations or discussions leading to the Contract was already known by the Recipient (or, in the case of Customer, any of its Affiliates) and was obtained or acquired in circumstances under which the Recipient was (or, in the case of Customer, Customer and its Affiliates were) not bound by any form of confidentiality obligation; or
5.4.3. is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary).
5.5. Neither party will make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
6. Liability
6.1. Atlas Merlin warrants that:
6.1.1. the Software (other than any third-party open-source components) and Documents are proprietary to Atlas Merlin and that, as far as it is aware, it has the right to license all UK IP in and to the Software and Documents to Customer; and
6.1.2. the Software conforms with the Specification in all material respects.
6.2. The warranties set out in condition 6.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to the Contract. Atlas Merlin specifically denies any implied or express warranty or representation that the Software will be fit to operate in conjunction with any hardware items or software products, or to operate uninterrupted or error-free.
6.3. Customer will be liable for all acts and omissions of its Affiliates and will indemnify Atlas Merlin against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Atlas Merlin arising out of or in connection with any act or omission of any of its Affiliates which if done or failed to be done by Customer would give rise to a claim by Atlas Merlin.
6.4. The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) will be as set out in conditions 6.5 to 6.10 (inclusive).
6.5. Atlas Merlin will have no liability for any claim:
6.5.1. caused or contributed to by Customer’s use of the Software in combination with devices other than Devices;
6.5.2. based on use of any version of the Software (other than the latest version supplied to Customer by Atlas Merlin), if such claim could have been avoided by the use of such latest version. Atlas Merlin has no obligation to supply new versions of the Software.
6.6. Subject to conditions 6.9 and 6.10, neither party will be liable for consequential, indirect or special losses.
6.7. Subject to conditions 6.9 and 6.10, Atlas Merlin will not be liable for any of the following (whether direct or indirect): loss of profit; loss or corruption of data; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill.
6.8. Subject to conditions 6.9 and 6.10, Atlas Merlin’s liability will not exceed in total the Licence Fees (excluding VAT) received by Atlas Merlin from Customer during the 12 months preceding the date upon which the claim is first notified to Atlas Merlin.
6.9. The limitations of liability set out in conditions 6.6 and 6.7 will not apply in respect of any indemnity given under the Contract.
6.10. Notwithstanding any other provision of the Contract, the liability of the parties will not be excluded or limited in any way in respect of any losses which cannot be excluded or limited by the applicable law.
7. Data
7.1. As between the parties, Customer owns all Customer Data. Atlas Merlin processes Customer Data on behalf of Customer for the purpose of providing, operating, maintaining and improving the Software.
7.2. Customer may at any time during the Contract Period request access to, or a copy of, Customer Data held by Atlas Merlin. Atlas Merlin will comply with any such request within a reasonable timeframe, having regard to the volume of data, the location at which it is stored (which may include local storage on Devices) and any technical or storage constraints.
7.3. Notwithstanding any other provision of the Contract, Atlas Merlin may at any time and in perpetuity collect, generate, use, retain, disclose and otherwise exploit anonymised and aggregated data derived from Customer Data (from which Customer, its Affiliates and their respective personnel cannot be identified) for any purpose, including the development, training, improvement, benchmarking and commercialisation of the Software and any other Atlas Merlin products and services. This right will survive expiry or termination of the Contract.
7.4. Following expiry or termination of the Contract, Customer may by written notice request that Atlas Merlin delete or return Customer Data, and Atlas Merlin will comply with any such request within a reasonable period. In the absence of such request, Atlas Merlin may retain Customer Data for a period of up to twenty-four (24) months following expiry or termination, after which it will be deleted (save for any anonymised and aggregated data referred to in condition 7.3, which Atlas Merlin may retain in perpetuity, and any data Atlas Merlin is required to retain by applicable law).
8. Data Protection
8.1. In this condition 8, the terms “personal data”, “controller”, “processor”, “data subject”, “process” and “processing” have the meanings given to them in the UK GDPR and the Data Protection Act 2018 (together, the Data Protection Laws).
8.2. The parties acknowledge that, in the course of providing the Software, Atlas Merlin may process personal data on Customer’s behalf, including incidental personal data captured by Devices in the course of their operation. In respect of any such processing, Customer is the controller and Atlas Merlin is the processor.
8.3. The processing of personal data by Atlas Merlin under the Contract is governed by Atlas Merlin’s data processing agreement located at https://atlasmerlin.com/legal/dpa (the DPA), which is incorporated into the Contract by reference and forms part of it. Atlas Merlin may update the DPA from time to time in accordance with condition 2.3.
8.4. Any details specific to a particular Order (including the categories of data subjects, types of personal data, nature and purposes of processing, and duration of processing) will be set out in the Order itself, in a section headed “Data Protection Particulars” or otherwise identified as such (the Data Protection Particulars). In the event of conflict between the DPA and the Data Protection Particulars, the Data Protection Particulars will prevail in respect of the Order to which they relate.
8.5. Each party will comply with its respective obligations under the Data Protection Laws in connection with the Contract.
9. Termination
9.1. Either party may terminate the Contract with immediate effect by giving notice to the other party if the other party:
9.1.1. is in material breach of any provision of the Contract and (if it is capable of remedy) the breach has not been remedied within 30 days after receipt of written notice specifying the breach and requiring its remedy; or
9.1.2. becomes insolvent, or if an order is made or a resolution is passed for the winding up of the other party (except voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed over the whole or any part of the other party’s assets, or if the other party makes any arrangement with its creditors; or
9.1.3. ceases to trade or appears, in the reasonable opinion of the other party, to be likely to cease to trade, or is unable to pay its debts as they fall due, or has any distraint, execution or other process levied or enforced on any of its property; or
9.1.4. is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction.
9.2. Expiry or termination of the Contract will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of expiry or termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of expiry or termination.
9.3. The following will continue to be enforceable notwithstanding the expiration or termination of the Contract:
9.3.1. conditions 3.3, 3.4, 3.6, 3.9, 4 (to the extent of any unpaid sums and 4.6), 5, 6 (excluding 6.1), 7, 8, 9.2, 9.3 and 9.4; and
9.3.2. any conditions of the Contract not listed in condition 9.3.1 which expressly or impliedly have effect after termination; and
9.3.3. any conditions of the Contract reasonably required for the interpretation of the conditions referred to in conditions 9.3.1 and/or 9.3.2.
9.4. Upon the expiration or termination of the Contract howsoever occasioned:
9.4.1. Customer will permanently delete the Software from its and its Affiliates’ clouds, its and its Affiliates’ IT networks and any storage means associated with any computer equipment owned or controlled by it or any of its Affiliates; and
9.4.2. subject to conditions 7 and 8, the Recipient will return to the Discloser within 30 days of such termination or expiration all Confidential Information of the Discloser and its Affiliates in the Recipient’s possession or control and all copies of such material, or, at the Discloser’s option, destroy such Confidential Information.
Nothing in the Contract will require a party to modify, alter, delete or destroy computer back-up media made in the ordinary course of business.
10. Miscellaneous
10.1. The Contract constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
10.2. Any notice given under or in connection with the Contract must be in writing and must be delivered by hand, sent by pre-paid first-class post or other next working day delivery service, or sent by email.
Notices to Atlas Merlin must be sent to legal@atlasmerlin.com or to Atlas Merlin’s registered office from time to time. Notices to Customer must be sent to the address and email address specified in the Order (or, if not specified, to Customer’s registered office and to the email address of Customer’s signatory to the Order). Either party may change its notice details by giving notice to the other party in accordance with this condition 10.2.
A notice will be deemed to have been received: (a) if delivered by hand, at the time of delivery; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or (c) if sent by email, at the time of transmission, provided that no automated message indicating delivery failure is received by the sender within 24 hours.
This condition 10.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.3. Each party acknowledges that it has not entered into the Contract in reliance on, and will have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party will have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. Nothing in the Contract purports to limit or exclude any liability for fraud.
10.4. Neither party may assign, subcontract, sublicense or encumber any right or obligation under the Contract, in whole or in part, without the other party’s prior written consent, except that either party may assign the Contract in connection with the transfer or sale of all or substantially all of its assets or business or its merger or consolidation with another company or corporation, provided that such successor is bound by the terms of the Contract. The assigning party must provide a written notice of such assignment as soon as reasonably practicable.
10.5. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question will apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties will negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
10.6. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Contract will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right, power or remedy.
10.7. A person who is not a party to the Contract will not have any rights to enforce any of the provisions of the Contract.
10.8. The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) will be governed by, and construed in accordance with, the laws of England. The parties irrevocably agree that the courts of England will have jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims), save that nothing will prevent either party from seeking injunctive relief or enforcing a judgment of the English courts in any appropriate jurisdiction.
10.9. Atlas Merlin’s Privacy Policy is located at https://atlasmerlin.com/legal/privacy and may be updated by Atlas Merlin from time to time.