Terms & Conditions
To make this Agreement more understandable, and so that you are certain as to what rights you are gaining under it; we need to define certain terms:· "Annual Fee" means the annual fee payable by you to us which renews your license to use the Software (subsequent to the Term) and entitles you to receive Customer Services during the relevant year.· "Associated Database" means the structured set of data held, used, manipulated, transformed and created by the Software that is fundamental to the operation of it.· "Confidential Information" means any information relating to the business or trade secrets of either you or us including (but without limitation):
(i) any information relating to, connected with and/or describing any of your customers to which we are exposed;
(ii) the technical information, data, processes and know-how employed by us in providing the Software and Customer Services to you; and
(iii) the content and provisions of this Agreement together with all matters, facts, events and occurrences connected with your and our discharge of our respective obligations under it.
"Customer Services" means the support and maintenance services for the Software and Supported Hardware described in Section 4. below.·
"Delivery Date" means the date that you receive the Software from us.·
"Designated Equipment" means the computer hardware listed in the Schedule.·
"Initial Fee" means the amount set out next to the heading ‘Initial Fee’ in the Schedule.·
"Limit" means the factors or features set out in the Schedule (which may include (without limitation) maximum number of users, number of employees configured on a database) which describe the extent of your licence to use the Software "Location" means the postal address of the site where the Designated Equipment is situated as set out in the
"Schedule" means the schedule overleaf in which we and you state the variables in this Agreement. On your request, we will issue a new Schedule which will comprehensively re-state such variables (including for example (but without limitation), the components of the Software licensed to you and your Use Configuration). It is your obligation to ensure that
the Schedule correctly states the information set out in it and it describes the correct permutation of Software and Customer Services.
"Service Start Date" means the date upon which you will be entitled to receive Customer Services set out in the Schedule.
"Software" means the means the computer programs, the Associated Database and associated documentation listed in the Schedule against the heading ‘Software’. It does not include source code but does include configuration undertaken by us, new releases, updates or revisions
to the computer programs which are available to you as part of Customer Services in Section 4.
"Supported Hardware" means the computer hardware described in the Schedule which are the subject of Customer Services.
"Term" means the initial fixed period of time for which you and we have
contracted for as set out in the Schedule.
"Use Configuration" means the selection and permutation of the different types of use of the Software (and its different component parts) permitted under this Agreement and the different services connected with that use which is comprehensively stated in the Schedule.
"Users" means the number of persons (being your employees or persons under contract to you) who have access to and use the Software on the Designated Equipment at any one time.
In order to maintain the style, length and content of this Agreement to understandable and commercially appropriate dimensions, we and you agree that comprehensive definitions of all of the component parts of the Use Configuration will not be expressly included in this Agreement.
Instead, you and we agree that you may apply to us for a written definition of any term appearing in the Schedule not defined in this Clause. You further agree that such definition will be conclusive of the matter.
2. THE LICENCE
2.1 Following the Delivery Date and our receipt of the Initial Fee in full, we grant to you a personal, non-exclusive, non-transferable annual licence to use the Software in the Use Configuration only at the Location only.
2.2 You only have the right to use the Software set out in the Schedule in the Use Configuration and only the number of Users set out in the Schedule may have access to it at any one time. You must not make the Software available for other parties to use nor use (at any one time) the Software beyond the Limit that you are authorised for under this
Agreement. You may not copy the Software in any circumstances except to make a reasonable number of back-up copies and you may only use a back-up copy by substituting it for the copy you are using. If copies you have made of the Software fall into the hands of a third party for any reason or through any route, you agree that you will be responsible for paying us the full licence and other fees connected with the use of these unauthorised copies. You will provide all of the remote connectivity to the Software and Designated Equipment that we advise you of at your sole and exclusive cost.
3.1 You agree to pay us, or our agent, the Initial Fee in accordance with the terms for payment set out in the Schedule. The Annual Fee is payable by you on or before each anniversary of the Service Start Date. In the event that we, in our sole discretion, permit you to pay the Annual Fee in instalments during the relevant year, you agree to make such payments (together with any premium chargeable) within forty five (45) days of our relevant invoice and you agree that any increase in the Annual Fee during such year will be applied pro-rata to all subsequent instalments.
3.2 Should you fail to pay within the foregoing terms, we become entitled to withdraw Customer Services and/or revoke your licence and you will lose your right to use the Software. You agree that us reinstating Customer Services after its withdrawal is not a cost free exercise for us.
Accordingly, you agree that we may (in our discretion) charge you a fee to reinstate Customer Servicers of 10% (ten per centum) of the then Annual Fee which you will pay straightaway. All charges quoted in this Agreement exclude VAT which will be chargeable at the then prevailing rate. We will give you notice of any change in the Annual Fee in the invoice we send to you.
4. CUSTOMER SERVICES
4.1 Customer Services (including a telephone advice service on the standard operation of the Software and troubleshooting with respect to the Supported Hardware (if nominated in the Schedule)) will be provided between 8.00 a.m. to 6.00 p.m. Monday to Friday inclusive, and 9.00 a.m. to 12.00 p.m. on Saturday; but excluding UK public holidays and all days between Christmas Eve and New Year’s Day inclusive. You and we may agree to extend this coverage by recording the additional cover in the Schedule against the heading: ‘Extended Customer Services’.
4.2 We undertake to use our reasonable efforts to rectify any errors in the Software that you notify to us in writing and that we can recreate with the latest unaltered release of the Software. However, if our efforts exonerate the Software as a cause of the problems you are reporting, you will be liable to pay us for our time spent at our then prevailing hourly rate.
4.3 The provision of Customer Services in respect of your Supported Hardware includes: (i) telephone advice on the standard operation, installation and configuration of it; (ii) a repair service at our discounted rate; and (iii) where the hardware in particular cannot be repaired,
replacement hardware at our discounted rates.
4.4 If we think it necessary, you must allow us or our representatives full access (both physical and remote) to the Software, the Designated Equipment and the Supported Hardware (where applicable) during normal working hours (and any extra agreed cover) so that we can carry out our obligations under this Agreement and ensure that you are complying with your obligations under this Agreement. Your non-compliance with your obligations arising under this Agreement enables us to terminate it. You must also ensure that you never provide us with information or enter information into the Software that is capable of identifying living
4.5 As they become available, we will advise you of any new releases, updates or revisions that we are incorporating into the Software. We deliver this type of change either by an on-site visit or through remote electronic means and we grant you a personal, non-exclusive, non-transferable licence to use it subject to the same restrictions that are set out elsewhere in this Agreement. At our discretion, significant extensions to the functionality of the Software may be options for which additional fees apply. If you elect to take a chargeable option, we will issue an additional Schedule to this Agreement and raise an invoice for any fee due;
but if you do not elect to take this option, your rights under this Agreement
will remain unaffected.
4.6 The provision of this licence and Customer Services is initially for the Term and thereafter ongoing on a yearly basis and continues unless cancelled by either you or us not less than thirty days (30) prior to the anniversary of the Service Start Date (always excepting the anniversaries taking place within the Term). The Annual Fee and the timing and method of payment are set out in the Schedule. All other Customer Services and other charges payable by you to us should be paid in full in accordance with our relevant invoice. In the event that any Annual Fee or any other fee or charge remains unpaid after it has become due for payment, we become entitled to withdraw the Customer Service provided in this Section or, at
our discretion, terminate this Agreement.
4.7 In the course of supplying Customer Services and other technical and support services to you, it is likely that you will address matters with us which are not covered by this Agreement and, although not bound or required to do so, in the interest of good general commercial relations with you we may provide advice, suggestions, proposals, information, data,
and the like where such provision is similarly made outside of this Agreement and ex gratia (such advice, suggestions, proposals, information, data, and the like being called collectively "Extra-Contractual Support").
5.1 Returns Policy
During a period of thirty (30) days commencing from the date we deliver the Software to you for the first time under this Agreement and where such delivery is taking place following our receipt of the Initial Fee in respect of it (such period being called the "Returnable Period"); you will be able to return the Software and receive a refund if you are dissatisfied with it.
Accordingly, we will refund your Initial Fee if, at any time within the Returnable Period, you deliver the Software and all other associated materials we have supplied to you (and any discrete copies you may have made) to us accompanied by:
(i) a written declaration that you have uninstalled the Software and made all electronic copies of it on your computer systems unreadable;
(ii) a written declaration made by you acknowledging that your rights to use the Software have ceased; and
(iii) a copy of our then current ‘Returns Form’ completed by you in full and signed by you or a person authorised to sign it on your behalf.
5.2 No Other Warranties
You assume full responsibility for the information and results obtained from the use of the Software and for the application of such information and results. Except for the express warranty given in Clause 4.2 above, we give no warranties or representations, and there shall be excluded from this Agreement any further warranties or conditions, either express or implied, statutory or otherwise, with regard to the Software, Customer Services and/or Extra-Contractual Support. Without prejudice to the generality of the foregoing, no implied warranties of quality, quality of service or fitness for a particular purpose are given by us, and no implied warranty arising by usage or trade, course of dealing, or course of performance is made by us nor can any such implied warranty arise by this Agreement and/or our and/or your conduct in relation hereto or to each other.
5.3 No Other Licences
Except for the express licence in Section 2. above, we grant no other licences and there shall be excluded from this Agreement any further licences, either express or implied, statutory or otherwise, with regard to the Software. Without prejudice to the generality of the foregoing, no implied licence arising by usage or trade, course of dealing, or course of performance is made by us nor shall any such implied licence arise by this Agreement and/or our and/or your conduct in relation to this Agreement or to each other.
5.4 Limitation of Liability
Always excluding our liability for personal injury or death, in no event shall we be liable to you for:
any direct damages or loss (whether arising in contract, tort, by statute or otherwise) being loss which is reasonably foreseeable by you and us at the time of entering into this Agreement in excess of the Annual Fee (set out in the Schedule) for the Software concerned; nor
any other form of loss or damage of whatsoever kind (whether arising in contract, tort, by statute or otherwise), including, but without limiting the generality of the foregoing, indirect, special, idiosyncratic or consequential damages or loss, loss of anticipated profits, loss of business opportunity or loss of contracts by you or any third party or claims or demands against you by any third party, loss arising out of or in connection with any act or omission of ours related to this Agreement, or any other economic loss in connection with or arising out of this Agreement; nor in connection with or arising out of the provision of Extra-Contractual Support in any manner whatsoever, any form of loss or damage of whatsoever kind (whether arising in contract, tort, by statute or otherwise), including, but without limiting the generality of the foregoing, direct, indirect, special, idiosyncratic or consequential damages or loss, loss of anticipated profits, loss of business opportunity or loss of contracts by you or any third party or claims or demands against you by any third party or other like economic loss.
You acknowledge that the Software is confidential material and agree that you must not show it or allow it to be shown to any third party in any form whatsoever without our prior permission given to you in writing. We make available at reasonable charges a wide range of information which could assist you in the creation of independent computer programs to operate with the Software. In view of this ready availability, you also agree not to reverse engineer the Software (including, for example, the use of any reverse compilation, decompilation or disassembly techniques or similar methods) to determine any design structure, concepts and methodology behind the Software, whether to incorporate it within any product of your own creation, or for any other purpose.
You may only terminate this Agreement after the Term by giving us thirty days written notice, but you will not be entitled to any refund of the Initial Fee and the Annual Fees. If we or you terminate this Agreement you lose your right to use the Software. You must therefore return ALL COPIES of the Software to us or you may, with our written permission, destroy ALL COPIES of the Software and certify to us in writing that you have done so.
Each party undertakes to keep and treat as confidential and not to disclose to any third party, any Confidential Information nor make use of such information for any purpose whatsoever, except for the purposes of this Agreement, provided that the foregoing obligation shall not extend to information which is: (i) in or comes into the public domain other than by breach of this Agreement; (ii) in the possession of one party prior to receipt from the other party; (iii) received bona fide by one party from a third party not receiving the information directly or indirectly from the other party.
9. DATA SECURITY AND DISASTER RECOVERY
The Software resides on the Designated Equipment which is under your control and not ours. You are solely responsible for the security and provision of back-up copies of the Software together with recovery of it in the event of any circumstance.
10. THIRD PARTY SOFTWARE
It may show on the Schedule that we are supplying certain computer software products which do not originate from us and which we are not licensing to you under this Agreement (which we will refer to as "Third Party Software"). You agree that it is your sole responsibility to ensure that you have a valid license for your use of the Third Party Software. Moreover, you specifically agree that you assume full responsibility for the information and results obtained from the use of the Third Party Software and for the application of such information and results and that we give no warranties or representations, and there shall be excluded from this Agreement any warranties or conditions, either express or implied,
statutory or otherwise, with regard to the Third Party Software.
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