Breathe Simulation Products: Subscription License Terms & Conditions
This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Breathe Battery Technologies Limited of Office 7, 35-37 Ludgate Hill, London, EC4M 7JN (Licensor, us or we) for the use of the Services.
We license the Software to you and provide you with access to the Platform and Models on the basis of the terms of this Licence as set out below (the Terms), so please read these carefully.
By clicking on the “accept” button associated with this Licence or by completing and submitting to us an Order Form or Work Order you agree that these Terms apply to your access to, and use of, the Services and these will bind you and your employees. Where an individual accesses the Services or downloads and/or installs the Software, such individual represents that they have the authority to agree to these Terms on behalf of their employer.
Definitions
1.1 “API Call” means access to the functionality of and/or data from the Software via an Application Programming Interface call;
1.2 “Authorised User” means a User in respect of which the relevant Fees have been paid for access to the Services at the relevant time;
1.3 “Breathe Confidential Information” means information relating to the description, functionality and/or performance of the Software, Library and/or Platform and the associated software code and documentation supplied by us;
1.4 “Confidential Information” means the Breathe Confidential Information and the Customer Confidential Information;
1.5 “Customer Confidential Information” means information relating to the description, functionality and/or performance of the Product, the Models generated for you by us and/or the Outputs generated by you;
1.6 “Disclosing Party” means the party disclosing Confidential Information under this Licence;
1.7 “Fee(s)” means the amount(s) payable to us in accordance with these Terms, as set out in the Order Form or any Work Order;
1.8 “Intellectual Property Rights” means patents, rights to inventions, design rights, copyright, database rights, utility models, trade marks, domain names, know-how and trade secrets and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, divisions, continuations, renewals, re-issuances and extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
1.9 “Initial Term” means the period of 12 months starting on the date you accept these Terms or, where the Services include the creation by us of a Model, starting on the date we first notify you that the Model is available in the Platform;
1.10 “Library” means a version of the Software which is available to be downloaded by a User for use by that User in conjunction with a Third Party Application;
1.11 “Model” means a simulation model made available by us to you (including as a result of parameters which have been provided or modified by you through the Services) representing the material properties and enabling calculation of the anticipated performance of a specific Product for use together with the Services;
1.12 “Order Form” means a form which sets out details of the Software and Models being ordered, the Fees payable and the number of concurrent Users for which a Licence is being ordered, which may be an online form;
1.13 “Outputs” means the data, results and/or other information generated or produced by the Software in connection with a Model or otherwise, as a result of your permitted use of the Services;
1.14 “Planned Start Date” means the proposed date on which we will start to generate a Model as set out in the relevant Work Order;
1.15 “Platform” means the web-based environment through which the Software is made available to you by us;
1.16 “Product” means any physical battery cell that you provide to us pursuant to these Terms to enable the creation of a Model;
1.17 “Receiving Party” means the party receiving Confidential Information under this Licence;
1.18 “Renewal Period” means each successive period of twelve months following the Initial Term;
1.19 “Services” means the Software, access to the Platform and the provision of Models;
1.20 “Software” means the software which is licensed to you under these Terms, details of which are set out in the Order Form;
1.21 “Subscription Term” means the Initial Term plus any Renewal Periods;
1.22 “Third Party Application” means a specific version of a third party application which, when used in conjunction with the Library and a Model, enables the properties of a Product to be modelled;
1.23 “User” means an individual user of the Services; and
1.24 “Work Order” means a written agreement for us to deliver a Model to you, whether forming part of the Order Form or otherwise.
Grant and scope of licence
2.1 In consideration of payment by you of the Fee(s) and you agreeing to abide by the terms of this Licence, we grant to you a non-exclusive, non-transferable licence to access and use the Services during the Subscription Term on these Terms and any additional specific terms that we have notified you in the Order Form and/or Work Order that apply to particular Services.
2.2 You shall ensure that the Services are only used concurrently by up to the number of your Users in respect of which you have paid the Fees. We shall promptly provide User access credentials to you (which may include a username, password and/or licence key) to enable access to the Services by your Authorised Users.
2.3 You may only download and use the Library version of the Software where expressly stated in the Order Form and/or Work Order, and in any such case only for use in conjunction with the Third Party Application named in the Order Form and/or Work Order.
2.4 You may only access the Software via an API Call where expressly stated in the Order Form and/or Work Order, and in any such case only from the Third Party Application named in the Order Form and/or Work Order.
2.5 Where the Services include the facility for you to generate Models, we do not limit the number of Models which can be created. You may only use any Model generated by or using the Services (including any Simscape block representing or incorporating some or all of any Model) during the Subscription Term.
2.6 Except as expressly set out in these Terms or as expressly permitted by any local law, you have no right to:
2.6.1 copy, rent, lease, sub-license, loan, translate, distribute, adapt, alter, vary or modify the Services;
2.6.2 permit the Services or any part of them to be combined with, or become incorporated in, any other programs;
2.6.3 disassemble, decompile, reverse-engineer, convert or create derivative works based on the whole or any part of the Services;
2.6.4 re-sell the Services or the functionality offered by the Services; or
2.6.5 provide or otherwise make available the Services or the functionality offered by the Services in whole or in part in any form to any person other than as permitted by the terms of this Licence without our prior written consent.
2.7 You shall be responsible for supervising and controlling your use of the Services, and for ensuring that the Services are used by your employees and/or representatives in accordance with these Terms.
2.8 You shall not:
2.8.1 use the Services for any unlawful activity;
2.8.2 upload, transmit or store anything in or via the Platform which is unlawful, harmful, threatening, defamatory, obscene, harassing, offensive or infringes the rights of any third party;
2.8.3 introduce or permit the introduction of anything into the Platform (including any software, code, file or program) which may prevent, impair or otherwise adversely affect access to or the operation of any program or data, or adversely affect the User experience, including worms, trojan horses, viruses and other similar things or devices;
2.8.4 access or use the Services in any way which shall or may disrupt access for any other Users;
2.8.5 use any access credentials for the Services other than those which were supplied to your Authorised Users;
2.8.6 disclose or make available any access credentials for the Services issued to your Authorised Users to a third party; and/or
2.8.7 circumvent or attempt to circumvent any access restrictions which we implement in respect of the Services.
2.9 We may suspend or terminate access to the Services by any Authorised User who we have reason to believe is in breach of clause 2.8.
2.10 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
Generation of a Model
3.1 Where set out in a Work Order we shall create and deliver a Model to you.
3.2 We shall use our reasonable endeavours to make a Model available to you by the estimated delivery date for the Model as set out in the relevant Work Order, subject to our receipt from you of:
3.2.1 the technical details and any other information requested from you in the relevant Work Order at least four weeks prior to the Planned Start Date;
3.2.2 the relevant Product at least one week before the Planned Start Date;
3.2.3 your prompt responses to any other requests by us for information we reasonably require in order to create the Model; and
3.2.4 payment of the Fees in respect of the Model.
3.3 You are responsible for ensuring the safe delivery of the Product to us, and we shall not be liable for any loss, damage or delay that occurs during such delivery process, nor for any inaccuracies or errors in the Model to the extent these are based on a damaged or defective Product where such damage or defect would not have been apparent to us on a reasonable inspection of the Product prior to our commencement of the Services.
3.4 You accept and agree that:
3.4.1 we will use, test and evaluate the Product as required to generate the Model;
3.4.2 the Model(s) we create for you will only be available for your use during your Subscription Term; and
3.4.3 we are reliant on the accuracy and completeness of the information you provide to us in order to create the Model, and we shall not be liable for any consequences arising from any inaccuracies, errors or omissions in such information.
3.5 Where you request any specific storage requirements in relation to the Product, we may charge you for our reasonable additional costs in meeting such specific requirements.
Intellectual Property Rights
4.1 You acknowledge that, subject to clause 4.3 below, all Intellectual Property Rights in the Services belong to us, that rights in the Services are licensed (not sold) to you, and that you have no rights in, or to, the Services other than the right to use them in accordance with these Terms.
4.2 Where you provide us with a Product pursuant to clause 3, we shall own the Intellectual Property Rights in any data or information that is created, developed or generated by us in the course of creating the Model, but all other Intellectual Property Rights in the Product shall be retained by you, and we shall not acquire any other rights in the Product other than to use it to perform our obligations pursuant to these Terms. You shall indemnify us against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by us as a result of any claim against us that the Product or the use of it by us in accordance with these Terms infringes a third party’s Intellectual Property Rights.
4.3 To the extent that your use of the Services produces Outputs, as between the parties and to the extent permitted by applicable law you shall own the Intellectual Property Rights in such Outputs.
4.4 If you provide any ideas, suggestions or other input to us relating to the Services (Feedback), you agree that we may use such Feedback at our sole discretion including in the further development and licensing of our Services, without any obligations or restrictions.
4.5 You grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use the Outputs and the Feedback solely for the purpose of developing and/or improving the Services and any related products or services that we may produce or develop now or in the future.
4.6 You acknowledge that you and your Users have no right to have access to any elements of the Services in source code form.
Payment
5.1 We shall invoice you in advance for all Fees due under this Licence, and you agree to pay such invoices within 30 days of the date of our invoice.
5.2 Fees payable in respect of access to the Services are due annually in advance for each Subscription Term.
5.3 Fees payable in respect of creation of a Model by us are a one-off payment.
5.4 The Fees are exclusive of VAT and any other applicable taxes, fees, duties, licenses or levies which shall be additionally payable by you at the rate and in the manner prescribed by law.
5.5 We shall be entitled to increase the Fee at any time by giving notice to you, provided that we shall not be entitled to increase the Subscription Fee: (i) in respect of any Subscription Term for which you have already paid in advance; or (ii) without providing at least six weeks prior notice to you.
5.6 We reserve the right to charge interest of 4% above the Bank of England base rate in force from time to time on any late payments due from you under this Licence, calculated from the date when payment of the invoice becomes due for payment until such amount is paid.
5.7 You may increase the number of Authorised Users of the Services at any time by paying the relevant additional Fee as set out in the Order Form. We may pro-rata the payment of Fees to ensure that all recurring Fees are payable by you on the same date annually provided that this pro-rated calculation shall not impact on the overall sum payable by you.
Warranty
6.1 We warrant that the Services will, when properly used in accordance with the documentation supplied by us, perform substantially in accordance with any description of the relevant Services referenced in the Order Form or as included within the Platform or otherwise provided to you by us.
6.2 If you notify us in writing of any defect or fault in the Services as a result of which the Services fail to perform as specified in clause 6.1, we will, at our sole option, either modify or replace the Services, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.
6.3 The warranty does not apply:
6.3.1 if the defect or fault in the Services results from you having altered or modified the Services, or used the Services in combination with any other software or service not provided or authorised by us; or
6.3.2 if the defect or fault in the Services results from you having used the Services in breach of these Terms, or for a purpose or in a context other than the purpose or context for which it was designed.
6.4 We will use reasonable endeavours to ensure that the Software is accessible by you via the Platform at all times during the Subscription Term, save in respect of:
6.4.1 planned maintenance, of which we shall use reasonable endeavours to notify you in advance;
6.4.2 unscheduled maintenance, such as maintenance carried out for emergency reasons; and
6.4.3 downtime caused by delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties, or for other any act or event beyond our reasonable control.
6.5 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Services. Except as expressly stated in these Terms, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law. In particular we do not warrant that:
6.5.1 the Services will be error-free;
6.5.2 the Services will meet your particular needs, and it is your responsibility to ensure that the functions and outputs of the Services are suitable for your intended purposes; or
6.5.3 any information which you generate or access through use of the Services (including but not limited to the Outputs) is accurate or complete, and we disclaim any liability arising out of or based upon the results of your use of the Services and/or the Outputs.
6.6 You acknowledge and accept that whilst the Services provide a tool to indicate potential performance parameters of Products, we do not and cannot offer any warranty or guarantee that real world performance of a battery will be equivalent to that indicated by the Models, Outputs or tools forming part of the Services. It is important that any indication of performance of a Product shown in any Model and/or the Outputs is fully tested by you in real world applications prior to any reliance on such Model and/or Outputs.
Support
7.1 We shall provide support to Authorised Users of the Services via email and/or webchat during the Subscription Term. We will use reasonable endeavours to solve problems with the Services that you notify to us, but the nature of the Services is such that no guarantee can be provided that any particular problem will be solved.
7.2 Our support provision will meet or exceed any support service levels set out in the Order Form.
7.3 We may also provide new releases and/or updates to the Software from time to time which incorporate “patches” and/or corrections of errors in the Software. These will be released automatically in respect of Software made available via the Platform.
7.4 In addition to our obligations under clauses 7.1 and 7.2 we shall also provide support during the Subscription Term for any Library which you are permitted to download, provided that such support shall be only be for the longer of: (i) 2 years; (ii) the period of time set out in the Order Form and/or Work Order; or (iii) such other period as is notified to you by us in writing. Once this support period has expired in respect of any Library version, we shall have no obligation to provide further support, updates and/or maintenance for such Library version, but where you are entitled to download a newer version of the Library the provisions of this clause 7.4 shall then apply to that newer Library version.
Limitation of liability
8.1 Subject to clause 8.4, we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence and the Outputs for any of the following (whether such losses are direct or indirect):
8.1.1 loss of profits, sales, business, or revenue;
8.1.2 business interruption or loss of use;
8.1.3 loss of anticipated savings;
8.1.4 wasted expenditure;
8.1.5 loss or corruption of data or information; or
8.1.6 loss of business opportunity, goodwill or reputation.
8.2 Subject to clause 8.4, we shall not be liable to you for any special, indirect or consequential losses.
8.3 Other than the losses set out in clause 8.1 and 8.2 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Fees due or paid in respect of the Initial Term or the Renewal Period in which the first claim arises. This maximum cap does not apply to clause 8.4.
8.4 Nothing in this Licence shall limit or exclude our liability for:
8.4.1 death or personal injury resulting from our negligence;
8.4.2 fraud or fraudulent misrepresentation;
8.4.3 any other liability that cannot be excluded or limited by English law.
Term and Termination
9.1 This Licence shall automatically renew at the end of the Initial Term or the relevant Renewal Period (as applicable) unless terminated earlier in accordance with this clause 9.
9.2 Either party may terminate this Licence by giving the other party at least 30 days’ written notice before the end of the Initial Term or the relevant Renewal Period (as applicable) in which case this Licence shall terminate upon the expiry of the Initial Term or applicable Renewal Period.
9.3 We may suspend or terminate this Licence immediately by written notice to you if you:
9.3.1 fail to make any payment within 30 days of any Fee becoming due for payment; or
9.3.2 commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 30 days after the service of written notice requiring you to do so.
9.4 On termination for any reason:
9.4.1 all rights granted to you under this Licence shall cease;
9.4.2 you must immediately cease all activities authorised by this Licence;
9.4.3 you shall no longer be able to access the Services, and any access credentials provided to you shall be disabled;
9.4.4 you will no longer have access to any Models or any data stored by you on the Platform;
9.4.5 any amounts paid to us in accordance with these Terms shall not be refunded, and any outstanding unpaid invoices shall become immediately payable. We shall also submit invoices for any Services that we have supplied but which have not yet been invoiced, which shall be payable immediately on receipt;
9.4.6 any Library provided to you may automatically deactivate and cease to function; and
9.4.7 you must immediately and permanently uninstall, delete or remove any Library from all computer equipment in your possession, custody or control.
9.5 In addition to clause 9.4, on termination of this Licence we shall return any Product provided to us pursuant to clause 3 at your cost if you give us at least 2 weeks’ notice in writing to expire at any time within 6 months of receipt of the Product by us. If we receive no such request within this time, we may at our discretion either: (i) continue to store the Product in such manner and for such period as we see fit (subject always to clause 10); or (ii) [securely] destroy or recycle the Product.
Confidentiality
10.1 We shall maintain the confidentiality of the Customer Confidential Information, and shall not without your prior written consent disclose or use any Customer Confidential Information other than as necessary for the performance of our obligations as set out in these Terms, or in connection with our express rights under this Licence.
10.2 You shall maintain the confidentiality of the Breathe Confidential Information, and shall not without our prior written consent disclose or use any Breathe Confidential Information other than as necessary for the purposes of accessing and making use of the Services as permitted by this Licence.
10.3 The provisions of this clause 10 shall not apply to any Confidential Information that:
10.3.1 is or becomes generally available to the public (other than as a result of its disclosure by the Receiving Party in breach of this clause 10);
10.3.2 was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party;
10.3.3 was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party;
10.3.4 is developed by or for the Receiving Party independently of the Confidential Information disclosed by the Disclosing Party; or
10.3.5 the parties agree in writing is not confidential or may be disclosed.
How we may use your personal information
11.1 Under data protection legislation, we are required to provide you with certain information about who we are, how we process the personal data of those individuals who use the Services and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them.
11.2 This information is provided in our privacy policy at https://breathebatteries.com/privacy-policy and it is important that you read that information.
Other important terms
12.1 We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence. You may only transfer your rights or your obligations under this Licence if we agree in writing.
12.2 We may revise these Terms at any time by updating them on our website and we shall notify you that we have done so. If you do not agree with any such revision you may terminate this Licence within 7 days of the relevant revision without liability to us (save that you shall be required to pay for any use of the Services prior to such termination if you have not paid for this already). Your continued use of the Services shall be deemed to constitute acceptance of any revised terms.
12.3 This Licence, the Order Form(s) and any Work Order(s) constitute the entire agreement between us and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between us, whether written or oral, relating to its subject matter.
12.4 You acknowledge that in entering into this Licence you do not rely on and 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 Licence or any document expressly referred to in it. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence or any document expressly referred to in it.
12.5 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
12.6 Each of the conditions of this Licence 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.
12.7 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an Event Outside Our Control. An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks. If an Event Outside Our Control takes place that affects the performance of our obligations under this Licence:
12.7.1 our obligations under this Licence will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
12.7.2 we will use our reasonable endeavours to find a solution by which our obligations under this Licence may be performed despite the Event Outside Our Control.
12.8 If we have to contact you, we will do so by email or by pre-paid post to the address you provided as part of your order for the Services. You should send any notice to us by email to hello@breathebatteries.com or by pre-paid post to our address stated above. Note that any notice:
12.8.1 given by us to you 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; and
12.8.2 given by you to us 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.
12.9 In proving the service of any notice, it will be sufficient to prove, 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.
12.10 This Licence, its subject matter and its formation (and 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.