This Licence and Services Agreement (“Agreement”) applies to any Mambo software product (“Product”) you wish to install and use and any related Mambo service that you order. The Agreement is between Mambo Solutions Limited, a company registered in England (no.09162219), whose registered office is Dalton House, 60 Windsor Avenue, London, SW19 2RR, United Kingdom (“Mambo”), and the purchaser of Mambo services and/or Products as identified in the applicable Order Form or Partner Agreement (each as defined below) (“you”) . These terms do not apply to any open source software that is licensed by Mambo.
By installing, running and using the Product and/or using a Service (as defined in section 3.1), you confirm that you accept and agree to be bound by the terms of this Agreement. If you do not agree to all of the terms of this Agreement, you may not install, run and/or use any Product or Service.
The effective date of this Agreement is the earlier of the date on which you accept this Agreement or the date on which you install the Product(s) or use a Service (“Effective Date”).
An individual acting on behalf of an entity represents that he or she has the authority to agree to the terms of this Agreement on behalf of that entity.
1. Licence to use the Product
1.1 Scope of licence
Subject to the terms of thisAgreement, Mambo grants you a non exclusive, royalty- free, non transferable, limited licence, without the right to grant sub-licences, during the Subscription Period (as defined in section 1.4) or the term of the Order Form (as set out in section 9.2), as applicable, to use the applicable Products for your own personal, non- commercial use or internal business purposes (as applicable). The Products which you are licensed to use under the scope of this Agreement are the specific Products set out in either: (a) the order form you submit to, and which is accepted by, Mambo (“Order Form”); or (b) the applicable Partner Agreement (as defined in section 1.4). The licence in this section 1.1 is limited to the maximum number of CPUs specified in the Order Form or Partner Agreement (as applicable). In this Agreement, “CPU” is defined as: (a) a single central processing unit with up to four cores on which the Software Product may be installed; or (b) in a virtualised environment, an allocation of up to four virtual cores to a given virtual machine instance (so, for example, if a virtual machine has 10 virtual cores, it will be treated as having three CPUs (i.e. two with four cores and one with two cores)).
You may not: (a) use any Product for or on behalf of anyone else (which includes operating any form of facility on behalf of anyone else or operating a software bureau service); (b) license, sub-license, sell, re-sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any Product; (c) copy or create derivative works from any Product or any part of it, including to produce a similar product; (d) remove or alter any copyright, trade mark or other proprietary notice in or on the Product; or (e) modify, disassemble, decompile or reverse engineer any Product, except to the extent specifically authorised under applicable law notwithstanding contractual prohibition and provided that you first request Mambo to make available to you interface information needed to achieve interoperability between an independent program and the Product. Such request must be submitted to Mambo in writing and such information, if provided by Mambo, will be: (i) used by you solely for the purpose of achieving the required interface interoperability; and (ii) treated by you as Mambo’s Confidential Information (as defined in section 10 below).
Mambo will be entitled to treat any breach by you of sections 1.1 and/or 1.2 as a material breach of this Agreement.
Mambo has entered into agreements with other organisations (“Partners”) to promote, market, distribute and support certain Mambo products. If you purchase Products from a Partner, you will be entering into a contract with the Partner for the purchase of the Products and which may include the provision of support with respect to the Products (“Partner Agreement”) for an agreed term (“Subscription Period”), but your use of the Products is subject to the terms set out in this Agreement and you are only permitted to use the Products in accordance with this Agreement. Mambo is not responsible for: (a) the acts or omissions of its Partners; or (b) any obligations any Partner has to you.
2.1 Additional CPUs
You will notify Mambo (or if you have entered into a Partner Agreement, the Partner) promptly in writing if the actual number of CPUs in use exceeds the number of CPUs licensed under this Agreement, as set out in the applicable Order Form or Partner Agreement (“Additional CPUs”). Your notice must include the number of excess CPUs and the date(s) on which the additional CPUs were first used. Without limiting Mambo’s rights under section 9, your licence to use the Product(s) under this Agreement will only include the additional CPUs if and when you pay the applicable additional charges to Mambo or the Partner (as applicable).
You will at all times maintain accurate records necessary to verify the number of CPUs that you use in respect of the Products. You will provide copies of such records to Mambo within seven days of written request.
3. Supply of Services
Mambo will provide any services listed in an Order Form in accordance with the applicable service description set out in Annex A of this Agreement (“Services”).
3.2 Changes to Services
Mambo may: (a) make improvements and/or minor changes to the Services from time to time in its discretion; and (b) suspend the Services in order to repair, maintain or improve the Services, provided that Mambo will, where reasonably Mambo Licence and Services Agreement v1.0 2 practicable, give you as much advance notice as reasonably possible of an activity in this section 3.2, and will use all reasonable efforts to minimise any detrimental effect of such activities on the Services.
3.3 Your obligations
You will cooperate with and provide all reasonable assistance and information to Mambo to enable Mambo to provide the Services under this Agreement.
3.4 On-premises support
If Mambo personnel are required to work on your premises in order to provide Services: (a) you will provide a reasonably safe and secure working environment for Mambo personnel; and (b) Mambo will comply with all reasonable health and safety and security policies that you notify to Mambo in writing.
You acknowledge and agree that Mambo or its third party licensors own all rights, title and interest in and to the Services, the Products and all modifications, enhancements and derivative works Mambo may develop to or from the Products and any and all intellectual property rights in all of the foregoing. You agree not to use any of Mambo’s trade marks or other business names included in the Product or Services for any purpose. You acknowledge that, except as expressly set out in this Agreement, nothing in this Agreement will give you rights in respect of any intellectual property rights owned by Mambo or its licensors. All intellectual property rights and other rights of Mambo and its licensors which are not expressly granted to you by this Agreement are reserved.
5. Warranty and disclaimers
5.1 Limited warranties
Mambo warrants that: (a) the Product will, under normal operating conditions, operate substantially in accordance with Mambo’s published specification for the Product for a period of 90 days following installation of the Product; and (b) it will perform any Services in a professional manner and using reasonable skill and care.
If Mambo breaches a warranty in section 5.1, and if such breach does not result from you having installed or used the Product in an unauthorised manner, you must tell Mambo as soon as possible and provide sufficient details of the breach of warranty for Mambo to be able to re-create such problem. You must give Mambo a reasonable time to fix the problem and (if necessary) to supply you with a corrected version of the Product (or a practicable way to work-around the problem) or to re-perform the Services, as applicable. This will be done without any additional charge to you. If Mambo is able to do this within a reasonable time, Mambo will have no other obligations or liability in relation to that breach. If Mambo is unable to do this within a reasonable time or Mambo does not think that it is a sensible way to deal with the problem, then Mambo may if it wishes elect to: (a) take back the Product; and/or (b) refund to you the money which you have paid to Mambo under this agreement in relation to that Product and/or Service (as applicable). Subject to section 6.1, the provisions in this section 5.2 are your sole remedy for breach of the warranty in section 5.1. Sections 5.1 and 5.2 will not apply if you have purchased a Product and/or Service from a Partner under a Partner Agreement, in which case the terms of the Partner Agreement will apply with respect to the warranties and remedies given with respect to the Product and/or Service.
5.3 Minor defects
Minor errors or interruptions in the operation of the Products or Services that do not have any materially adverse effect on their operation in accordance with this Agreement shall not breach clause 5.1 provided that Mambo corrects such errors or interruptions within a reasonable time of the errors or interruptions arising.
Mambo does not represent or warrant that: (a) the use of any Product or Service will be secure,
timely, uninterrupted or error-free or compatible in combination with any other hardware, software, system or data; (b) the Product(s) or Services will meet your expectations; (c) the Product(s) or Services will be error- free; or that (d) any Product is free of viruses or other harmful components. You acknowledge that the Products and Services have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Products and Services meet your requirements. Except as expressly set out in this Agreement, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Products or Services and, to the maximum extent permitted by applicable law, are excluded by Mambo.
Mambo will not be liable for breach of any warranties or other terms in this Agreement to the extent that the breach arises from: (a) use of the Services or Products other than in accordance with normal operating procedures contained in Mambo’s published documentation or as notified to you by Mambo; (b) any alterations to the Services or Products made by anyone other than Mambo or someone authorised by Mambo; or (c) any problem with the computer on which the Services or Products are accessed, any equipment connected to that computer or any software which is installed on that computer.
6. Mambo’s liability
6.1 Nothing in this Agreement will limit or exclude Mambo’s liability to you: (a) for death or personal injury caused by Mambo’s negligence; (b) for fraudulent misrepresentation; (c) under Part I of the Consumer Protection Act 1987; (d) for breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (e) for any other liability that may not, under applicable law, be limited or excluded.
6.2 Subject to section 6.1: (a) if you are a business, Mambo will not be liable to you (whether such liability arises due to breach of contract, negligence or any other reason) for any: (i) loss of profits; (ii) loss of revenue; (iii) loss of business or contracts; (iv) loss of or damage to goodwill; (in each case whether direct or indirect); or (v) indirect or consequential losses; (b) if you are a Mambo Licence and Services Agreement v1.0 3 consumer, Mambo will not be liable to you for any business losses and any liability we do have for losses you suffer in respect of any Product, Service or Order Form will be limited to losses that were reasonably foreseeable.
6.3 Subject to sections 6.1 and 6.2, Mambo’s maximum aggregate liability to you (whether such liability arises due to breach of contract, negligence or any other reason) will be limited to a sum equal to the total Charges (as defined in section 8.1) payable by you under this Agreement in the 12 months preceding the most recent event or the last in a series of connected events.
7. IPR indemnity
7.1 Mambo will indemnify you against any loss or damage you suffer or incur as a result of any claim by a third party that your use of the Products and/or Services as permitted by this Agreement infringes the intellectual property rights of any third party (“IPR Claim”). In order for this indemnity to apply: (a) you must tell Mambo as soon as you become aware of a claim and give Mambo as much information as you can in relation to it; (b) you must not make any admissions in relation to the claim without obtaining Mambo’s permission first; and (c) if Mambo asks you to do so, you must let Mambo take over dealing with the claim on your behalf. If you do not do all of these things, then Mambo will not have to indemnify you in respect of the IPR Claim.
7.2 If an IPR Claim is made or is likely to be made, Mambo may, at its own expense and at its option either: (a) procure the right for you to continue using the affected Service(s) or Product(s) (as applicable); (b) modify or replace the affected Service(s) or Product(s) (as applicable) so as to avoid the alleged infringement, in either case without a materially adverse effect on the relevant Service(s) or Product(s).
7.3 The indemnity in section 7.1 will not apply to any IPR Claim: (a) arising in respect of any unauthorised use of the Products or Services; (b) that arises in relation to any changes to the Products which have not been made by Mambo or any combination or use of the Products with anything else where that combination or use has not been approved by Mambo; or (c) any intellectual property rights subsisting outside the area of permitted use under this Agreement.
8. Charges and payment
If you have ordered Products and/or Services from Mambo under an Order Form, you will pay to Mambo the applicable subscription charges for the Products and any other fees specified on the Order Form (together, “Charges”), within the period specified on the Order Form (or if no such period is specified in the Order Form, within 30 days of the date of the applicable invoice) in accordance with the terms of this Agreement. All Charges are payable in US Dollars unless otherwise stated in the Order Form.
Mambo may invoice you for the sums set out in an Order Form as soon as it approves the Order Form.
Any amounts payable under this Agreement are, unless agreed otherwise, exclusive of any Value Added Tax or other sales tax and, if applicable, you will be liable to pay any such tax in addition to those amounts.
8.4. Fee increases
Mambo may, in its sole discretion, increase its subscription and other charges with effect from expiry of the Initial Term and/or any subsequent Renewal Term, provided that Mambo gives you at least 90 days’ prior written notice of any such increase. If you do not agree to any such increase, you may terminate this Agreement and the Order Form by giving 60 days’ written notice to Mambo, such notice to expire at the end of the Initial Term or Renewal Term as applicable.
If you are a business, then without prejudice to Mambo’s other rights and remedies, if you are in default of your payment obligations under this Agreement, Mambo may charge interest on all sums outstanding beyond the date on which they are due for payment under this Agreement from the date payment was due until the date of payment (and before as well as after judgment) at the rate of 2% per annum above the base rate of HSBC Bank plc.
9. Term and termination
9.1 Term of Agreement
The term of this Agreement will begin on the Effective Date and, unless terminated earlier in accordance with its terms, will remain in effect: (a) if you have purchased Products and/or Services from Mambo, for the duration of the applicable Order Form as set out in section 9.2; or (b) if you have purchased Products and/or Services from a Partner, for the Subscription Period.
9.2 Term of Order Form
The term of an Order Form starts on the date on which the Order Form is executed by you and Mambo, and will continue in effect for the period stated in the Order Form (“Initial Term”). After expiry of the Initial Term, the Order Form will renew for successive 12 month periods (each a “Renewal Term”), unless the Order Form is terminated by either party giving at least 60 days’ written notice to expire at the end of the Initial Term or Renewal Term as applicable.
Either party may terminate this Agreement and any Order Form with immediate effect by giving written notice if the other party: (a) materially breaches any term of the Agreement and/or Order Form and it is not possible to remedy that breach; (b) materially breaches any term of the Agreement and/or Order Form and it is possible to remedy that breach, but the other ails to do so within 30 days of being asked to do so; or (c) becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), becomes bankrupt, or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any Mambo Licence and Services Agreement v1.0 4 applicable jurisdiction, or ceases to trade or threatens to do so.
9.4 Suspension by Mambo
If you are in material breach of this Agreement, an accepted Order Form, another related agreement with Mambo and/or a Partner Agreement (including for unauthorised use of a Product and/or non-payment of applicable Charges), Mambo may suspend this Agreement and any Order Form by giving you written notice.
9.5 Effects of suspension, termination
During suspension of, or on termination of, this Agreement all rights granted to you under this Agreement will cease, and you must stop using the applicable Product(s) immediately. On termination of this Agreement: (a) you must immediately de-install, delete or remove the Product(s) from all computer equipment and systems in your possession and immediately destroy or return to Mambo (at Mambo’s option) all copies of the Product(s) and any materials relating to the Services then in your possession or control and, in the case of destruction and/or deletion, certify to Mambo that you have done so; and (b) if any Charges or other amounts payable under this Agreement in respect of any Order Form remain unpaid, such amounts will be immediately due and payable to Mambo and you will pay such amounts to Mambo without deduction.
Termination of this Agreement and any Order Form will not affect any accrued rights or liabilities which either party may have by the time termination takes effect. Sections 4, 6, 7, 9.5, 10 and 12 (including as the same are incorporated into any Order Form) will survive termination for any reason.
You acknowledge that the Products and Services contain confidential, proprietary and trade secret information belonging to Mambo, and you agree to hold such information, and any other confidential or proprietary information of Mambo (collectively, “Confidential Information”) in strict confidence and agree not to disclose any Confidential Information to any third party. You will have no obligation to maintain the confidentiality of any information which: (a) is or becomes publicly available without breach of this Agreement; (b) is rightfully received by you from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is required to be disclosed by law or regulation or by court order; or (d) has been approved for release by written permission of Mambo.
11.1 No assignment
You may not transfer or assign any or all of your rights and/or obligations under this Agreement.
All notices given by you to Mambo must be given in writing to Mambo’s registered office address at the top of this Agreement.
If Mambo fails to enforce any of its rights, that does not result in a waiver of that right.
If any provision of this Agreement is found to be unenforceable, all other provisions will remain unaffected.
The terms of this Agreement may not be varied except with Mambo’s express written consent.
11.6 Entire agreement
Subject to clause 6.1(b), the terms of this Agreement represent the entire agreement between you and Mambo in relation to the subject matter of this Agreement.
All headings in this Agreement are inserted for convenience and will not be deemed part of this agreement for the purposes of interpretation.
12. Governing law and jurisdiction
The terms of this Agreement will be governed by English law, and you agree that any claim you may have against Mambo arising under or in connection with this Agreement, the Products and/or Services may only be dealt with by the English courts, provided that if you are a consumer: (a) and you live in a part of the United Kingdom other than England, the applicable law of that part of the United Kingdom will govern and any claim may be brought by you before the courts there; or (b) you live in another member state of the European Union, any claim may be brought by you before the courts there.
MAMBO SUPPORT SERVICES
1. Mambo Support
Mambo’s support offerings, service levels and guidelines are available at http://mambo.io/support.
Your applicable support package will be as set out in the Order Form. Mambo support may only be used by your dedicated Technical Support Contacts.
The use of Mambo support by a third party that is not part of the Agreement, or for Community Versions, is a breach of the contract.
2. Scope of Support
In using Mambo support, you agree to: (a) provide Mambo with sufficient information and resources to correct the relevant support issue; (b) install and operate the Product on a supported stack, as identified in the support site; (c) promptly install all service packs provided by Mambo; (d) procure, install and maintain all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Product.
You are responsible for reading the release notes and any other available documentation before installing or upgrading the Product, and for testing the Product before deploying it in a production environment. You are also responsible for the backup of the production systems on a regular basis and for having those backups available if needed for support purposes.
Mambo is not obligated to provide support for the following: (a) Product that has been modified or damaged by customer or third party, unless at Mambo’s direction; (b) issues caused by your negligence, hardware malfunction or other causes beyond the reasonable control of Mambo; (c) issues caused by third party software not licensed through Mambo or provided by Mambo.
3. Technical Support Contacts
Mambo support will provide support to the designated contacts, as identified in the Order Form (“Technical Support Contacts”). The Technical Support Contacts should have “read, write and execute” access to the necessary files, English language communication skills and relevant technical knowledge to assist the Mambo Support Team. You may modify your designated Technical Support Contacts at any time during the term of this Agreement by notifying Mambo in writing and giving Mambo five (5) business days to process the change request. Technical Support Contacts will be the only interface to the Mambo Support Team. In an emergency, a Mambo Support Agent will respond to an issue for an unauthorized contact on an exception basis subject to later verification and involvement of a named Technical Support Contact.