The Software (defined below) and the Source Code (defined below), owned by Epson Singapore Pte Ltd ("Epson"), are provided to each successful applicant to the B-POS App Developer Programme (“Licensee”), under the following terms and conditions ("Terms of Licence") as may be updated by Epson from time to time without notice to you. BY CLICKING THE “I ACCEPT” BUTTON, YOU, THE LICENSEE, ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS TERMS OF LICENCE. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS TERMS OF LICENCE, DO NOT CLICK ON THE “I ACCEPT” BUTTON.
“Derivative Product” means any product that is developed by Licensee under the Licensee’s own trademark or brand, and for specific use with an Epson Product, and which incorporates the Software and/or Improvements. “Documentation” means [Digital copies of the Source Code, Installer File and User Guide], and such other manuals, specifications or other documentation in any printed, machine readable or other form including but not limited to listings, manuals and magnetic media, relating to the Software and/or Source Code, as may be furnished to the Licensee under this Terms of License. “Effective Date” means the date on which the Licensee is issued by Epson with the login identification number or name, password and/or other form of electronic identification or signature for the purpose of enabling the Licensee to access and download the Software and Source Code. “Epson Affiliate” means any entity that controls, is controlled by, or is under common control with Epson, whether through ownership of voting securities or otherwise. “Epson Product” means any product that is made, supplied, sold or distributed by Epson or an Epson Affiliate, and includes Epson-branded point-of-sale (POS) terminals and systems. “Improvements” means any alteration, adaptation, modification, or variation to the Software, including any enhancements, upgrades or new versions, or new features or functionalities to the Software. “Source Code” means the source code version of the Software which is in the possession of Epson or its related corporations as of the Effective Date. “Software” means the Epson B-POS Software to which access is granted upon acceptance of this Terms of License, and the Documentation, and any part thereof. “Term” is defined in Clause 5. “Territory” means Singapore.
2. GRANT OF LICENCE
2.1 Software License. Epson hereby grants to Licensee, and Licensee accepts, subject to the terms and conditions of this Terms of Licence, a non-exclusive, personal, non-transferable, royalty-free and non-sublicensable licence to use the Software in the Territory during the Term: (a) to develop, make, and distribute Derivative Products in the Territory; and (b) to develop Improvements solely for the purpose of Clause 2.1.
2.2 Source Code Licence. In addition to the rights granted under Clause 2.1, Epson hereby grants to Licensee, and Licensee accepts, subject to the terms and conditions, a non-exclusive, personal, non-transferable, royalty-free and non-sublicensable licence to use the Source Code in the Territory during the Term, strictly for the purposes set out in Clause 2.1, and for no other purpose.
2.3 This Terms of Licence and all licences and rights granted under it shall automatically terminate if Licensee fails to develop any Derivative Products within two (2) years from the Effective Date. All rights not specifically granted under this Terms of Licence are reserved by Epson. Nothing in this Terms of Licence shall oblige Epson to provide Licensee with: (i) any adaptations, modifications and/or improvements to the Software or Source Code, including any updates, patches, bug-fixes and/or upgrades to the Software or Source Code, or any new versions and/or releases of the Software or Source Code; or (ii) any technical assistance, support, or training.
3. SOURCE CODE
As a condition of the licence granted pursuant to Clause 2.2, the following restrictions shall apply: (i) Licensee shall only install a reasonable number of copies of Source Code on devices owned or controlled by Licensee solely for the uses set out in Clause 2.1; (ii) Licensee shall not copy the Source Code except that Licensee may make one (1) copy solely for archival or backup purposes, and such further copies as are reasonably necessary for the development and testing of Improvements and Derivative Products in accordance with the terms and conditions of this Terms of Licence; and (iii) Licensee shall not sub-license, distribute, disclose or permit access to the Source Code or any part thereof, either in original, modified or improved form, to any third party. Licensee agrees and acknowledges that all Source Code constitute valuable and proprietary confidential Information of Epson, which if used or disclosed in breach of this clause, will cause grave and irreparable damage to Epson. Licensee shall at all times indemnify and keep Epson indemnified against all or any costs, claims, damages or expenses which Epson may incur or become liable for, as a result of any breach of this Clause 3.
4. IMPROVEMENTS & DERIVATIVE PRODUCTS
4.1 Improvements. Licensee may, at its sole expense, develop Improvements solely for use in accordance with Clause 2.1, subject to the terms of this Terms of Licence, and provided that full and immediate written disclosure of all Improvements shall be made to Epson.
4.2 Derivative Products. Licensee shall be entitled to use the Software and Improvements to develop, make and distribute the Derivative Products in the Territory during the Term of this Terms of Licence, provided always that: (a) Derivative Products are only developed for specific use with Epson Products, and no other products or services; (b) Licensee ensures that all users of Derivative Products (each an “End-User”) enter into binding end-user licence agreements with Licensee (collectively “End-User Licences”) in such form as shall be specified or approved in writing by Epson from time to time; (c) Licensee is responsible for ensuring the compliance by the End-Users of all the terms of the End-User Licence; (d) all costs and expenses incurred in the development, marketing, distribution and exploitation of the Derivative Products shall be borne solely by Licensee; and (e) Licensee shall be solely responsible for the use and operation of the Derivative Products and for any and all product warranties, assistance and support to be provided to End-User with respect to the Derivative Products. Licensee shall be solely responsible for, and Epson shall have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from or in connection with the Derivative Products, including: (i) any claim of breach of warranty by an End-User; (ii) any product liability claim; and (iii) any claim that any part of a Derivative Product infringes the copyright or other intellectual property rights of any third party.
4.3 A breach of Clause 4.1 or Clause 4.2 by Licensee shall constitute a material breach incapable of remedy.
4.4 All rights, title and interests in the Improvements and Derivative Products created pursuant to Clause 4.1 and Clause 4.2 shall vest in and be owned by Licensee, subject always to: (i) Epson’s rights, title and interests in and to the Software and Epson Products; and (ii) the provisions of Clause 4.5.
4.5 Licensee hereby agrees to grant Epson and Epson Affiliates a perpetual, non-exclusive, irrevocable, and royalty-free licence to use all Improvements and Derivative Products, in both object code and source code forms, for their research and development, product improvement and internal business purposes.
This Terms of Licence shall come into effect on the Effective Date and shall continue in force for a period of two (2) years, unless terminated earlier in accordance with this Terms of Licence (“Term”).
6. OBLIGATIONS OF LICENSEE
Licensee hereby undertakes and agrees with Epson to observe and perform its obligations in accordance with the terms and conditions of this Terms of Licence throughout the Term and in particular shall at its own costs: (a) use its best efforts to introduce the Derivative Products into the commercial market as soon as practicable, consistent with sound reasonable business practice and judgment; (b) use its best efforts to ensure that the Improvements and Derivative Products will be free from all viruses, Trojan Horses, worms, logic bombs, spyware, malware, malicious codes or other software routine or hardware components designed to permit unauthorised access, to disable, erase, or otherwise harm software, hardware or data, or to perform any such actions; (c) ensure that the Improvements and Derivative Products do not and will not infringe any patent, copyright, trade secret, design right or other intellectual property or proprietary rights of whatever nature of any third party; and (d) comply with all applicable laws and regulations and obtain and maintain all necessary licences, consents and permissions required to perform its obligations or exercise its rights under this Terms of Licence, including without limitation those relating to the development, marketing, distribution and exploitation of the Derivative Products.
Licensee further undertakes not to directly or indirectly: (i) use the Software for any unlawful or illegal activity, nor develop any Improvement or Derivative Product which would commit or facilitate the commission of a crime, or other tortious, unlawful or illegal act; or (ii) create any Improvement, Derivative Product or other program, or commit any act, that would disable, hack or otherwise interfere with the normal operation or use of the Epson Products.
7. OWNERSHIP OF SOFTWARE
All copyrights, patent rights, design rights, layout-design rights, trade mark rights, trade secrets, proprietary information and all other intellectual and industrial property rights, comprised in the Software and Epson Products shall vest at all times in Epson and shall be the exclusive property of Epson (collectively “Epson Intellectual Property”). Licensee shall not during or at any time after the expiry or termination of this Terms of Licence question or dispute the ownership or validity of the Epson Intellectual Property. To the extent that any Epson Intellectual Property may remain or become vested in Licensee, Licensee hereby irrevocably assigns the entirety of such rights or benefits to Epson, together with any goodwill related thereto. Licensee shall execute all further documents and deeds necessary to effect, perfect, record, or register such assignment. Licensee shall not use in any manner whatsoever the trade names, trade marks, logos or symbols of or associated with Epson or any Epson Affiliates, without the prior written permission of Epson. Licensee shall retain and fully reproduce the Epson copyright, disclaimers and other proprietary notices in the Software, and shall not remove or alter any such notices.
The Licensee shall not disclose or release to any third party any technical information, source code (including the Source Code), object code, software, equipment, data, processes, inventions, products, pricing, data, business or financial information, documents, and other proprietary information (collectively “Confidential Information”) of Epson received or obtained in the course or for the purposes of this Terms of Licence, or in negotiations leading thereto, nor use any Confidential Information for any purpose other than the performance of its obligations under this Terms of Licence, without obtaining the prior written consent of Epson, except for: (a) information which was at the time of disclosure, or thereafter falls, in the public domain without wilfulness or misconduct of the Licensee; (b) information which, prior to disclosure hereunder, was already in the Licensee’s possession either without limitation on disclosure to others or subsequently becoming free of such limitation; (c) information obtained by Licensee from a third party having an independent right to disclose this information; (d) information which is independently developed by the Licensee; or (e) information which the Licensee is required to disclose by law, order of court, or by the rules or regulations of any relevant regulatory or governing body with jurisdiction over the Licensee. The Licensee shall take all reasonable steps, including, but not limited to, those steps taken to protect its own information, data or other tangible or intangible property that it regards as proprietary or confidential, to ensure that the Confidential Information is not disclosed or duplicated for the use of any third party, and shall take all reasonable steps to prevent its officers and employees, or any other persons having access to the Confidential Information, from disclosing or making unauthorized use of any Confidential Information, or from committing any acts or omissions that may result in a violation of this Terms of Licence.
9. NO WARRANTIES
The Software and Source Code are licensed ‘AS IS’ without warranty of any kind. EXCEPT AS EXPRESSLY PROVIDED IN THIS TERMS OF LICENCE, EPSON MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, COMPLIANCE WITH ANY DESCRIPTION OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY EPSON TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Without limiting the generality of the foregoing, Epson does not warrant that the operation of the Software or Source Code will be uninterrupted or that the Software or Source Code is error-free, virus-free or free from other invasive or damaging code, and in no event shall Epson be liable for any error, inaccuracy, omission, defect or deficiency in the Software, Source Code or any part thereof. In no event shall Epson have any liability under contract, tort or any cause of action, including but not limited to any direct, indirect, incidental, special, exemplary or consequential damages or losses (including, but not limited to, procurement of substitute goods or services; loss of use, data or profits; or business interruption), even if Epson has been advised of the possibility of such damage or loss.
10. INDEMNITIES & INSURANCE
Licensee hereby agrees to indemnify and hold harmless Epson from and against all claims (including any third party claim), demands, actions, losses, damages, costs (including legal costs on a full indemnity basis), expenses and liabilities whatsoever which Epson may incur or suffer in connection with or arising from: (a) any improper or unauthorised use of the Software; (b) the development, marketing, distribution, exploitation and/or use of the Software, Derivative Products or Improvements; (c) any claim that any Improvements or Derivative Products made by or for Licensee infringes any intellectual property rights of any third party; or (d) any breach of this Terms of Licence by Licensee, or any act or omission of Licensee. Licensee shall maintain adequate product liability insurance and shall ensure that Epson’s interest as joint beneficiary is noted on the policy. Licensee shall supply Epson with a copy of such insurance policy on request. The rights and remedies provided under this clause are in addition to, and not exclusive of, any rights or remedies provided by law or under this Terms of Licence.
11. LIMITATION OF LIABILITY
Neither Epson, any Epson Affiliate nor any of their directors, employees or agents shall have any liability or responsibility to Licensee for any loss, damage, expense, cost or liability arising from or in connection with this Terms of Licence, including any loss, damage, cost or liability arising form or caused by the Software, Improvements or Derivative Products, or from Licensee’s use or exploitation of the same. To the fullest extent permitted by applicable law, Epson shall not be liable for any direct, indirect, special, incidental, or consequential damages, costs or expenses, including lost profit and loss of goodwill, opportunity costs, loss of business, damage to reputation, claims by third parties or customers, exemplary or punitive damages, regardless of the form of action, whether in contract or tort (including negligence).
Epson shall be entitled forthwith to terminate this Terms of Licence by notice in writing if:
(a) Licensee is in breach of any one or more of its obligations under this Terms of Licence and such breach: (i) is incapable of remedy; or (ii) if in the opinion of Epson such breach is capable of remedy, Licensee fails to remedy such breach within thirty (30) days after written notice of such default has been given to Licensee by Epson; or
(b) if Licensee is unable to pay its debts when due, an order of court is made to wind up Licensee or to place Licensee under judicial management, or a resolution is passed by the members of Licensee for its winding up or liquidation, or any distress or execution is levied or enforced in relation to any of the assets of Licensee, or Licensee has a receiver or administrator appointed over the whole or any part of its assets, or Licensee makes any composition or arrangement with its creditors, or takes or suffers any similar action in consequence of its debts, or Licensee ceases, or threatens to cease, to carry on business or become insolvent.
Termination of this Terms of Licence howsoever caused shall not prejudice any other right or remedy which accrues to Epson before the date of termination.
Upon termination of this Terms of Licence, the Licensee shall immediately cease exercising all rights granted to it under this Terms of Licence, including the right to use the Software and Source Code, and shall immediately and at its own costs uninstall and remove all copies of the Software and Source Code at the option of Epson, either destroy or return all Confidential Information of Epson (including all copies thereto) and shall certify the destruction or return of all such Confidential Information. Notwithstanding the expiry or termination of this Terms of Licence for any reason, Clauses 8 (Confidentiality), 9 (No Warranties), 10 (Indemnities and Insurance), 11 (Limitation of Liability), 12 (Termination), 13 (General), and any other Clauses of this Terms of Licence which from their nature or context are intended to survive the termination of this Terms of Licence, shall survive the expiration or termination of this Terms of Licence and shall be deemed to remain in full force and effect.
Nothing in this Terms of Licence shall be deemed to constitute an agency, partnership or a joint venture between the Parties, and Licensee shall not have any authority of any kind to bind the Epson in any respect whatsoever.
Licensee shall not assign this Terms of Licence or any such rights and obligations hereunder to any third party without the prior consent in writing of Epson. Epson may assign or transfer all or any part of its rights and obligations under this Terms of Licence upon giving written notice to the Licensee.
Any waiver by Epson must be in writing, and signed by an authorised representative of Epson. No delay or omission by Epson to exercise any right or power it has under this Terms of Licence will impair or be construed as a waiver of such right or power. A waiver by Epson of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant.
All notices, demands or other communications required hereunder shall be made in writing and delivered personally, or sent by prepaid registered post or by facsimile, addressed to the other Party at their respective registered company addresses or to such other address or facsimile number as may be notified by the other Party in writing from time to time. Any such notice, demand or communication shall be deemed to have been duly served on and received by the addressee if personally delivered by hand or sent by prepaid registered post, at the time of receipt of delivery, or if transmitted by way of facsimile at the time of successful transmission to the correct facsimile number as evidenced by the transmission report.
This Terms of Licence contains the entire agreement between the Parties regarding the subject matter hereof, and supersedes all prior Terms of Licences, representations, understandings and negotiations. No modification, variation or amendment to this Terms of Licence shall be effective unless made in writing and signed by both Parties.
A person or entity who is not a Party to this Terms of Licence shall have no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term of this Terms of Licence, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description.
If any provision of this Terms of Licence is held invalid or unenforceable by a court of competent jurisdiction, it shall be considered severed from this Terms of Licence and shall not serve to invalidate or affect the remaining provisions.
This Terms of Licence and all matters arising out of or in connection thereto shall be governed by and construed in accordance with the laws of Singapore. The Parties hereby submit to the non-exclusive jurisdiction of the Singapore courts.