Simple Waterfall Pro End User Licence Agreement

1. Definitions and interpretation

1.1 In this Agreement:

• “Affiliate” means, in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party, where “control” means holding more than 50% of the voting rights or the right to appoint a majority of the board.
• “Agreement” means this end user licence agreement, including Schedule 1.
• “Authorised User” means an individual employee, contractor or agent of the Customer or its Affiliates to whom the Customer has assigned a Pro Licence. An Affiliate may exercise the rights granted to the Customer under this Agreement, but the Customer remains responsible for the acts and omissions of its Affiliates and their Authorised Users in connection with the Software and for their compliance with this Agreement.
• “Business Day” means a day other than a Saturday, Sunday or public/bank holiday in England.
• “Business Hours” means 09:00 to 17:00 UK time on a Business Day.
• “Configure” means to add the Software to a Report, or to change the fields, settings or formatting of the Software in a Report. Viewing or interacting with a Report, refreshing its data, editing other content in the Report, and removing the Software from a Report are not Configuring. “Configuring” has a corresponding meaning.
• “Customer” means any individual or organisation that holds a Subscription or Configures the Software. A person who only views or interacts with a Report is not a Customer.
• “Customer Data” means the data contained in, or connected to, the Customer’s Reports and Power BI datasets.
• “Documentation” means the user guide and help pages for the Software published by Datanomy at [DOCUMENTATION URL].
• “Fees” means the fees for a Subscription shown in the Marketplace listing, excluding taxes.
• “Intellectual Property Rights” means patents, copyright and related rights, trade marks, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how) and all other intellectual property rights, whether registered or unregistered, anywhere in the world.
• “Marketplace” means Microsoft AppSource, Microsoft Marketplace, or any successor Microsoft marketplace through which the Software is sold.
• “Microsoft” means Microsoft Corporation and its Affiliates that operate Microsoft Power BI and the Marketplace.
• “Pro Licence” means a licence permitting one Authorised User to Configure the Software, as described in clause 3.
• “Report” means a Power BI report, dashboard, app or other Power BI content that contains the Software.
• “Software” means the Simple Waterfall Pro custom visual for Microsoft Power BI, in object code form, including all of its features and any Updates.
• “Subscription” means the Customer’s entitlement, purchased through the Marketplace, to a number of Pro Licences.
• “Subscription Term” means each billing period of a Subscription, including renewals, as set by the Customer’s purchase through the Marketplace.
• “Update” means any correction, patch, enhancement or new version of the Software that Datanomy makes generally available.

1.2 Headings do not affect interpretation. Words such as “including” and “for example” are illustrative and do not limit the words before them. A reference to a statute includes it as amended or re-enacted. A reference to writing includes email.

2. Licence

2.1 Licence. Subject to this Agreement and to the Customer holding an active Subscription, Datanomy grants the Customer a non-exclusive, non-transferable, worldwide licence for each Authorised User to Configure the Software, and to publish and share Reports containing it, for the business purposes of the Customer and its Affiliates, in each case during the applicable Subscription Term. The licence to view and interact with Reports containing the Software after expiry or termination is subject to clause 13.7.

2.2 Viewing Reports.Datanomy permits any person to view and interact with a Report containing the Software without charge and without a Pro Licence, including by filtering, drilling, cross-highlighting and exporting, and including where the Report is shared inside or outside the Customer’s organisation, published, or embedded in another application. This permission does not allow Configuring.

2.3 Other organisations.An organisation that receives a Report from the Customer is not covered by the Customer’s Subscription. To Configure the Software, it must obtain its own Pro Licences through the Marketplace.

2.4 Consultants and agencies.Anyone who Configures the Software needs a Pro Licence held by a Customer, whether that is the organisation they work for or the organisation on whose behalf they are working. Datanomy’s own personnel do not need a Pro Licence.

2.5 Updates. Datanomy may provide Updates and may add, change or remove features. This Agreement applies to update where reasonably necessary to maintain or improve the Software, maintain compatibility with Microsoft Power BI, comply with applicable law or address security requirements.

2.6 Reservation of rights. The Software is licensed, not sold. All rights not expressly granted in this Agreement are reserved by Datanomy.

3. Pro Licences and Authorised Users

3.1 Each Pro Licence is for one named individual. It must not be shared between individuals, or assigned to a generic, shared or service account.

3.2 A Pro Licence is required for each individual who Configures the Software.

3.3 The Customer may reassign a Pro Licence from one individual to another, for example when an Authorised User leaves or changes role. Reassignment must not be used to rotate a single Pro Licence between several individuals to avoid purchasing additional Pro Licences.

3.4 Pro Licences are assigned and reassigned through the Microsoft 365 admin center, or any successor tool Microsoft provides.

3.5 The Customer is responsible for the compliance of its and its Affiliates’ Authorised Users with this Agreement, and for keeping its licence assignments accurate.

3.6 Pro Licences are available only through the Marketplace. Where the Customer cannot obtain a Pro Licence for a user or environment, for example a Microsoft national cloud or a country where the Marketplace does not sell the Software, that user must not Configure the Software.

3.7 Where Microsoft’s licence checks do not operate, including in Power BI Report Server, Publish to Web and embedded analytics, a Pro Licence is still required for anyone who Configures the Software.

4. Restrictions

4.1 Except as expressly permitted by this Agreement, or to the extent that applicable law does not allow the restriction, the Customer must not, and must not allow any other person to:

• copy the Software, other than as reasonably necessary to use it in accordance with this Agreement, including the copies embedded in Report files, or as permitted by section 50A of the Copyright, Designs and Patents Act 1988;
• modify, adapt, translate or create derivative works of the Software;
• reverse engineer, decompile or disassemble the Software, except to the extent expressly permitted by sections 50B or 50BA of the Copyright, Designs and Patents Act 1988 or any other applicable law that cannot be excluded by agreement;
• circumvent, disable or interfere with any licence check, entitlement mechanism or other technical restriction in the Software;
• Configure the Software without a Pro Licence;
• sell, rent, lease, sublicense, distribute or otherwise make the Software available as a standalone product, other than as part of Reports shared, published or embedded in accordance with clause 2.2;
• remove or alter any copyright, trade mark or other proprietary notice in the Software;
• use the Software’s code, or information obtained by decompiling it, develop a product that substantially reproduces the functionality of the Software; or
• use the Software in breach of applicable law or of the Customer’s terms with Microsoft for Power BI.

4.2 Open-source code.Where source code for any version of the Simple Waterfall visual has been published under an open-source licence, that licence applies only to the code as published under it, and nothing in this Agreement restricts the rights it grants in that code. It does not grant any rights in code first written after that version, in any other part of the Software, or in Datanomy’s names or trade marks, including “Simple Waterfall”. Any other source code for the Software that is publicly visible is not licensed for copying, modification or distribution, and all such rights are reserved.

5. Fees, billing and tax

5.1 The Software is sold only through the Marketplace. Microsoft facilitates billing, invoicing and payment collection for Datanomy through the Marketplace listing at the time of purchase or renewal.

5.2 Taxes on Subscriptions are calculated and collected by Microsoft in accordance with the Marketplace terms.

5.3 Cancellations and refunds are handled by Microsoft in accordance with its refund policies. Except under those policies or as this Agreement provides, Fees are non-refundable.

5.4 Datanomy may change the Fees for future Subscription Terms in accordance with the Marketplace’s requirements for price changes. A change does not affect a Subscription Term already paid for.

6. Licence compliance

6.1 If the number of individuals Configuring the Software exceeds the number of Pro Licences the Customer holds, the Customer will purchase enough additional Pro Licences through the Marketplace to cover the shortfall within 30 days of becoming aware of it or of receiving written notice from Datanomy, whichever is earlier.

6.2 If the Customer does not do so, Datanomy may terminate the Customer’s Pro Licences under clause 13.3, and may recover from the Customer the Fees that would have been payable for the excess use, for a period of no more than 12 months before Datanomy’s notice.

6.3 On reasonable written request, and not more than once in any 12-month period, the Customer will provide a good-faith estimate of the number of individuals who Configured the Software during the preceding 12 months, based on information reasonably available to it, such as its licence assignment records.

7. Intellectual property

7.1 Datanomy and its licensors own all Intellectual Property Rights in the Software and the Documentation. Nothing in this Agreement transfers ownership of them to the Customer. The Customer acquires no rights in the Software or Documentation except those expressly granted under this Agreement.

7.2 The Customer owns its Customer Data and its Reports, excluding the Software and any other third-party components they contain.

7.3 If the Customer or its users provide suggestions or feedback about the Software, Datanomy may use them freely without any obligation to the Customer.

7.4 Third-party components. The Software includes open-source components that are licensed under their own terms. Their notices are included with the Software and listed at [DOCUMENTATION URL]. Nothing in this Agreement restricts any rights the Customer has under those licences.

8. Data protection

8.1 The Software is designed to operate within the Microsoft Power BI environment. The Software does not transmit, upload or otherwise send Customer Data to Datanomy or to any server or system operated by Datanomy. Datanomy does not access, host, store or process Customer Data through the Software. Customer Data remains within the Customer’s Microsoft Power BI environment and is processed in accordance with the Customer’s agreement with Microsoft and the terms applicable to Microsoft Power BI.

8.2 The Customer is solely responsible for:

• the Customer Data and the lawfulness of its collection, use and processing;
• determining what data is included in its Reports and Power BI datasets;
• configuring and managing access permissions, security settings and user access within its Power BI environment; and
• ensuring that its use of the Software, Microsoft Power BI and Customer Data complies with applicable laws and regulations, including applicable data protection laws.

8.3 Datanomy is not responsible for the security, availability, integrity, confidentiality, processing, storage or protection of Customer Data within Microsoft Power BI or any other Microsoft service. Microsoft’s processing of Customer Data is governed by the Customer’s agreement with Microsoft and the terms applicable to the relevant Microsoft service.

8.4 Microsoft may provide Datanomy with information relating to Customers who purchase, subscribe to, download or otherwise obtain the Software through the Marketplace, including the Customer’s name, organisation, contact details, subscription details and other information reasonably required for account administration, support, licensing, billing, transactional or related purposes (“Marketplace Customer Information”). Datanomy processes Marketplace Customer Information as an independent controller and not as a processor on behalf of the Customer as described in the Simple Waterfall privacy notice at datanomytechnologies.com/simple-waterfall-privacy-policy.

8.5 Datanomy may use Marketplace Customer Information for purposes connected with the Customer’s purchase and use of the Software, including administering and supporting the Subscription, communicating with the Customer regarding the Software, providing technical support, managing licences, complying with legal and regulatory obligations, preventing misuse and protecting Datanomy’s rights. Datanomy will process Marketplace Customer Information in accordance with applicable data protection law and its privacy notice.

8.6 Where support materials provided by the Customer contain personal data, Datanomy may process that personal data solely to the extent reasonably necessary to provide the requested support and in accordance with applicable data protection law. Datanomy does not undertake any obligation to access or process Customer Data and may refuse to accept, or may delete, support materials containing personal data, including special category data.

9. Support

9.1 Datanomy will use reasonable endeavours to respond to support requests submitted through [SUPPORT URL] or [SUPPORT EMAIL] during Business Hours.

9.2 No service levels, response times, resolution times or service credits apply to support.

9.3 Security vulnerabilities in the Software can be reported to [SECURITY CONTACT].

10. Warranties and refunds

10.1 Datanomy warrants that during each Subscription Term the Software will perform materially in accordance with the Documentation as it stood at the start of that Subscription Term. If it does not, and the Customer notifies Datanomy with reasonable details, Datanomy will use reasonable endeavours to correct the failure within a reasonable time. If Datanomy cannot do so, the Customer may cancel its Subscription and clause 10.2 applies. Subject to clause 11, this is the Customer’s sole remedy for breach of this warranty.

10.2 Refunds. Where this Agreement provides for a refund, Datanomy will ask Microsoft to refund the Fees for the unused part of the current Subscription Term. If Microsoft does not do so within 60 days, Datanomy will pay the Customer an amount equal to the Fees Datanomy received from Microsoft for that period.

10.3 The warranty in clause 10.1 does not apply to any failure caused by use of the Software other than in accordance with this Agreement and the Documentation, by changes to Microsoft Power BI or other third-party software or services, or by the Customer Data.

10.4 Datanomy does not warrant that the Software will be uninterrupted or error-free, or that it will remain compatible with every future version of Microsoft Power BI, which is a Microsoft service outside Datanomy’s control.

10.5 The Software calculates running totals, subtotals and variances from the data and settings in each Report. The Customer is responsible for the accuracy and completeness of the Customer Data, and for checking Reports, including those calculated values, before relying on them for financial, regulatory or other business decisions.

10.6 Except as expressly set out in this Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

11. Limitation of liability

11.1 Nothing in this Agreement limits or excludes liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot be limited or excluded by law.

11.2 Subject to clauses 11.1 and 11.5, neither party will be liable to the other, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any:

• loss of profits, revenue, business or anticipated savings;
• loss of goodwill or reputation;
• loss or corruption of data; or
• indirect or consequential loss.

11.3 Subject to clause 11.1, Datanomy’s total aggregate liability arising under or in connection with this Agreement, including Schedule 1, will not exceed the greater of:

• the Fees paid or payable by the Customer for the 12 months before the event giving rise to the claim; and
• £5,000.

11.4 Subject to clauses 11.1 and 11.5, the Customer’s total aggregate liability arising under or in connection with this Agreement will not exceed the amount set out in clause 11.3.

11.5 Clauses 11.2 and 11.4 do not limit the Customer’s liability to pay Fees, or amounts recoverable under clause 6.2, or its liability for breach of clause 4 or for infringement of Datanomy’s Intellectual Property Rights or breach of clause 14.

12. Intellectual property indemnity

12.1 Datanomy will defend the Customer against any claim by a third party that the Customer’s use of the Software in accordance with this Agreement infringes that third party’s Intellectual Property Rights in the United Kingdom, and will pay any damages finally awarded against the Customer, or agreed in settlement by Datanomy, in respect of that claim.

12.2 Clause 12.1 applies only if the Customer:

• notifies Datanomy promptly in writing of the claim;
• gives Datanomy sole control of its defence and settlement;
• gives Datanomy reasonable assistance, at Datanomy’s cost; and
• makes no admission about the claim without Datanomy’s written consent.

12.3 If a claim is made or is likely, Datanomy may, at its option and cost:

• obtain the right for the Customer to continue using the Software;
• modify or replace the Software so that it no longer infringes, without materially reducing its functionality; or
• terminate the Customer’s Subscription, in which case clause 10.2 applies.

12.4 Clause 12.1 does not apply to claims arising from:

• modification of the Software by anyone other than Datanomy;
• use of the Software in combination with anything not supplied by Datanomy, where the claim would not have arisen without that combination;
• use of the Software other than in accordance with this Agreement; or
• the Customer Data.

12.5 This clause 12 states the Customer’s sole remedy for any claim of infringement, and is subject to clause 11.3.

13. Term, cancellation and termination

13.1 This Agreement starts when the Customer accepts it by first purchasing a Subscription or Configuring the Software, whichever is earlier, and continues until terminated under this clause 13.

13.2 Each Subscription renews automatically for successive Subscription Terms unless cancelled. The Customer may cancel through Microsoft at any time, and cancellation takes effect in accordance with Microsoft’s terms for the Subscription.

13.3 Datanomy may suspend or terminate the Customer’s Pro Licences by written notice if the Customer commits a material breach of this Agreement which is not remedied, if capable of remedy, within 30 days of written notice requiring it to be remedied. Datanomy may suspend the Customer’s Pro Licences immediately where reasonably necessary to protect the security or integrity of the Software, comply with applicable law, or address a material security threat. Datanomy will notify the Customer as soon as reasonably practicable after such suspension.

13.4 If Microsoft suspends or cancels a Subscription, including for non-payment, the related Pro Licences are suspended or end accordingly.

13.5 Subject to applicable law, either party may terminate this Agreement by written notice if the other enters administration, liquidation or any similar insolvency procedure.

13.6 Datanomy may discontinue the Software on at least 90 days’ notice, given in writing or through the Marketplace. Clause 10.2 applies to any Fees paid for a period after discontinuation.

13.7 On expiry or termination of a Subscription, or discontinuation of the Software:

• the related Pro Licences end, and the Customer must not Configure the Software;
• Reports that already contain the Software may continue to be viewed and interacted with in accordance with clause 2.2, subject to the continued availability of the Software in Power BI; and
• any Fees owed under the Customer’s agreement with Microsoft remain payable.

13.8 Clauses 1, 2.2, 2.6, 4, 6, 7, 8.2, 10.2, 10.5, 10.6, 11, 12 (for claims notified before termination), 13.7, 14, 15, 16 and 18, and Schedule 1 until the relevant personal data is deleted, continue after termination, together with any other provision intended to survive.

14. Confidentiality

14.1 Each party will keep confidential any non-public information the other discloses to it in connection with this Agreement that is marked as confidential or would reasonably be regarded as confidential, including any files or data provided for support, and will use it only to perform its obligations or exercise its rights under this Agreement.

14.2 Each party may disclose confidential information to its employees, contractors and professional advisers who need to know it for those purposes and are bound by obligations of confidentiality.

14.3 Clause 14.1 does not apply to information that is or becomes public other than through a breach of this Agreement, was already lawfully known to the receiving party, is independently developed, or must be disclosed by law or by a regulator.

14.4 Where the parties have a separate non-disclosure agreement or services contract, its confidentiality terms also apply. If they conflict, the confidentiality provisions of the separate non-disclosure agreement or services contract shall prevail to the extent of the conflict.

15. Microsoft and the Marketplace

15.1 The Customer’s use of Microsoft Power BI and the Marketplace is governed by the Customer’s agreement with Microsoft. Microsoft is not a party to this Agreement.

15.2 Datanomy, not Microsoft, is responsible for the Software and for support under this Agreement. Datanomy is not responsible for Microsoft Power BI, the Marketplace, Microsoft’s infrastructure or services, or Microsoft’s processing, storage, security or protection of Customer Data.

15.3 Some features of the Software, including licence management, depend on services provided by Microsoft. Datanomy is not responsible for the availability or operation of those services.

15.4 The Customer acknowledges that Customer Data is processed within the Customer’s Microsoft Power BI environment and that the Customer is responsible for configuring and maintaining appropriate security, access and privacy controls for its Customer Data.

16. Datanomy consultancy clients and other terms

16.1 Where Datanomy also provides consultancy or other services to the Customer, including building, configuring or customising Reports that contain the Software:

• the Software remains Datanomy’s pre-existing material. It is not a deliverable, or any other material created for the Customer, under the contract for those services, however those terms are defined in it, and no Intellectual Property Rights in the Software vest in or transfer to the Customer;
• the Customer’s use of the Software is governed by this Agreement, and the Customer must hold Pro Licences for anyone who Configures the Software after Datanomy’s services end; and
• this clause 16.1 applies unless the contract for those services expressly identifies the Software or this Agreement and expressly states that this clause 16.1 is varied or excluded.

16.2 Terms in any Customer purchase order or similar document do not apply unless Datanomy expressly agrees to them in writing.

17. Changes to this Agreement

17.1 Datanomy may update this Agreement. Each version, with its effective date, is published at a permanent address at datanomytechnologies.com/simple-waterfall-eula, and all previous versions remain available there.

17.2 Datanomy will notify Customers holding a Subscription of any change, by email or through the Marketplace.

17.3 A change that materially disadvantages the Customer takes effect only from the start of the first Subscription Term beginning at least 30 days after that notice. No change will retrospectively affect a Subscription Term already paid for, except where required by applicable law or reasonably necessary to address security, regulatory or Microsoft Power BI requirements. The Customer may avoid the change by cancelling its Subscription before it takes effect.

17.4 Any other change takes effect on the date stated in the notice.

18. General

18.1 Business use. The Software is supplied for business and professional use only. Nothing in this Agreement affects any statutory rights that cannot be excluded or limited by agreement.

18.2 Assignment.The Customer may not assign or transfer this Agreement or any Pro Licence without Datanomy’s prior written consent, except to an Affiliate or to a purchaser of all or substantially all of the relevant business, on notice to Datanomy. Any such transfer shall not release the Customer from any liability or obligation accrued before the effective date of the transfer. Datanomy may assign this Agreement to an Affiliate, or to a successor to the relevant part of its business, on notice to the Customer.

18.3 Force majeure.Neither party is liable for any delay or failure to perform caused by events beyond its reasonable control. This does not affect the Customer’s obligation to pay Fees owed under its agreement with Microsoft.

18.4 Entire agreement. This Agreement is the entire agreement between the parties about its subject matter and supersedes any previous arrangement relating to it. Each party acknowledges that it has not relied on any statement not set out in this Agreement. Nothing in this clause limits liability for fraud.

18.5 Severance. If any provision is found to be invalid or unenforceable, it will be treated as modified to the minimum extent necessary to make it valid or, if that is not possible, as deleted, and the rest of this Agreement is unaffected.

18.6 Waiver. A failure or delay in exercising a right is not a waiver of it.

18.7 Third party rights. No one other than Datanomy and the Customer has any right to enforce this Agreement under the Contracts (Rights of Third Parties) Act 1999.

18.8 Export and sanctions. The Customer will comply with all applicable export control and sanctions laws in its use of the Software, and will not use it or make it available in breach of them.

18.9 Notices. Notices to Datanomy must be sent to [LEGAL NOTICES EMAIL] or to its registered office. Notices to the Customer may be sent to the email or postal address associated with its Marketplace account. A notice sent by email is treated as received on the next Business Day after sending.

18.10 Disputes. The parties will try in good faith to resolve any dispute through discussion between senior representatives. If a dispute is not resolved within 30 days, either party may propose mediation under the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Nothing in this clause prevents either party from seeking urgent relief from the courts.

18.11 Governing law and jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it, including non-contractual disputes or claims, are governed by the law of England and Wales. The courts of England and Wales have exclusive jurisdiction.

Schedule 1: Data processing terms for support materials

This Schedule applies where Datanomy processes personal data contained in support materials on the Customer’s behalf (“Support Personal Data”). It sets out the terms required by Article 28 of the UK GDPR and, where it applies, the EU GDPR. The terms “controller”, “processor”, “personal data”, “personal data breach”, “processing” and “special category data” have the meanings given in the UK GDPR.

1. Instructions.Datanomy will process Support Personal Data only on the Customer’s documented instructions, which are to use it to resolve the relevant support request, unless the law requires otherwise, in which case Datanomy will inform the Customer unless the law prohibits it. Datanomy will tell the Customer if it believes an instruction infringes data protection law.

2. Confidentiality. Datanomy will ensure that the people it authorises to process Support Personal Data are bound by obligations of confidentiality.

3. Security. Datanomy will implement appropriate technical and organisational measures to protect Support Personal Data, as required by Article 32 of the UK GDPR, including limiting access to the personnel handling the request.

4. Sub-processors. The Customer authorises Datanomy to use the sub-processors listed at datanomytechnologies.com/simple-waterfall-sub-processors, such as its email and document storage providers. Datanomy will give notice of any intended addition or replacement, and the Customer may object on reasonable data protection grounds. Datanomy will impose data protection obligations on each sub-processor equivalent to those in this Schedule, and remains liable for their performance.

5. International transfers. Datanomy will not transfer Support Personal Data outside the United Kingdom and the European Economic Area unless the safeguards required by data protection law are in place.

6. Assistance. Taking into account the nature of the processing, Datanomy will assist the Customer in responding to requests from data subjects, and in meeting its obligations under Articles 32 to 36 of the UK GDPR.

7. Personal data breaches. Datanomy will notify the Customer without undue delay after becoming aware of a personal data breach affecting Support Personal Data.

8. Deletion.Datanomy will delete Support Personal Data within 30 days after the support request is closed, or earlier at the Customer’s request, unless the law requires it to be kept.

9. Information and audit. Datanomy will make available the information reasonably necessary to demonstrate its compliance with this Schedule. It will allow for and contribute to audits, including inspections by the Customer or an auditor it appoints, on reasonable notice and not more than once a year, unless a supervisory authority requires otherwise or following a personal data breach.

10. Liability. Liability under this Schedule is subject to clause 11 of the Agreement.