General Software terms and conditions
SOFTWARE LICENCE AND TECHNICAL AGREEMENT
IP Products limited has agreed to grant the Customer a non-exclusive licence to use the computer software programs and associated documentation listed in the Schedule and to provide certain services to the Customer in respect of technical support upon the terms of this agreement
OPERATIVE PROVISIONS:
1. Definitions
1.1. In this agreement Unless the context otherwise requires:-
"ADDITIONAL CHARGES"
Means IP Products Limited rates from time to time for work undertaken on a time and materials basis.
"COMMENCEMENT DATE"
Means the date of Commencement of this agreement calculated in accordance with clause and set out in the schedule.
"DESIGNATED EQUIPMENT"
Means the machine identified by type and serial number in the Schedule.
"INITIAL PERIOD"
Means the period of twelve months commencing on the Commencement Date.
"LICENCE FEE"
Means the annual fee for the licence and Services set out in the Schedule as varied in accordance with clause 3.3. below
"LICENSED PROGRAMS"
Means the software programs identified by title and reference number in the Schedule including any Update of the same version made pursuant to clause 5 below.
"LICENSED PROGRAM MATERIALS"
Means the licensed Programs and the Program Documentation.
"UPADATE"
Means any improved modified or corrected program of the same version of any program of any of the Licensed Programs or Program Documentation from time to time issued by IP Products Limited pursuant to clause 5 below.
"PLACE OF USE"
Means the part of the Customer's premises at the Site where the Designated Equipment is installed and operated.
"PROGRAM DOCUMENTATION"
Means the instruction manuals user guides and other information (identified by title and reference number in the Schedule) to be made available by IP Products Limited in respect of the Licensed Programs.
"RESPONSE TIME"
Means either of the response times for category C Technical support set out in clause 5.4 below "SERVICES" means the provision of Technical Support in accordance with clause 5 below.
"SITE"
Means the address for delivery of the Licensed Program Materials specified by the Customer and set out in the Schedule.
"TECHNICAL SUPPORT"
Means the provision of such categories of technical support in accordance with clause 5 below as shall be specified in respect of each of the Licensed Programs in the Schedule.
"USE"
Means the copying or transmission of the licensed programs (or where in machine readable form) the Program Documentation into the Designated Equipment for the Processing of the instructions contained in the Licensed Programs (or as the case may be) the Program Documentation.
2. Grant of licence and Provision of Services
2.1. IP Products Limited in consideration of the payment by the Customer from time to time of the Licence Fee in accordance with clause 3 below hereby:-
2.1.1. Grants to the customer a non-exclusive licence to Use the Licensed Programs (and where appropriate the Program Documentation) upon the Designated Equipment and to possess and refer to the Program Documentation; and 2.1.2. undertakes to the Customer to provide the Services upon the terms and conditions of this agreement.
3. Licence Fee
3.1. The Licence Fee shall include the cost of:-
3.1.1. The delivery of the Licensed Program Materials and any Updates thereof to the Site.
3.1.2. The provision of the services.
3.2. The Licence Fee (together with value added tax thereon) shall be levied in advance by IP Products Limited not more than twenty-eight days prior to the Initial Period and thereafter not more than twenty-eight days before each subsequent anniversary of the Commencement Date and shall be payable by the Customer within 30 days of receipt of IP Products Limited's invoice therefor.
3.3. IP Products Limited shall be entitled to vary the Licence Fee not more than once in every successive period of 12 months during the currency of this agreement upon giving not less than [60] days' notice thereof to the Customer.
3.4. IP Products Limited reserves the right to charge the Customer interest in respect of the late payment of any sum due under this agreement (as well as before judgement) at the rate of 2.5. per cent per [month] [ annum] above the base rate from time to time of the National Westminster Bank Plc from the due date therefore until payment.
3.5. THE LICENCE FEE IS NON-REFUNDABLE and once invoiced in accordance with clause 3.2. of this agreement shall be due and payable by the Customer notwithstanding that the Customer may have given notice terminating this agreement in accordance with clause 15.1.1. if that Notice expires after the date of IP Products Limited's invoice.
4. Commencement
4.1. Where the Customer possesses the Licensed Program Materials at the date of this agreement then the Commencement Date shall be the date Specified in the Schedule.
4.2. Where IP Products Limited are to supply the Licensed Program Materials to the Customer then the Commencement Date shall be the date that the Licensed Program Materials are actually delivered to the Site as specified in the Schedule.
4.3. If IP Products Limited are to supply AND INSTALL the Licensed Program Materials than IP Products Limited shall install the Licensed Program Materials on the Designated Equipment and shall carry out appropriate tests to ensure that the Licensed Programs con form to the agreed specification and the Commencement Date shall be the date of installation as specified in the Schedule.
5. Technical Support
5.1. With effect from this Commencement Date and for the duration of this agreement IP Products Limited shall provide in respect of each of the Licensed Programs such category of Technical Support within such Response Time as shall be indicated in the Schedule.
5.2. Technical Support shall comprise all or any of the following categories:-
5.2.1. Advice by telephone or post on the Use of the Licensed Programs (category "A").
5.2.2. Information and advice by telephone or post on forthcoming Updates of the Licensed Programs (category "B").
5.2.3. Upon notification by the customer of faults in the Licensed Programs IP Products Limited will use best endeavours to respond by telephone to the customer within the time stated in clause 5.4.1. below.
5.2.4. The creation and despatch to the customer from time to time at IP Products Limited's sole discretion of fixes in respect of the Licensed Programs (category "D").
5.2.5. The creation and despatch to the Customer from time to time at IP Products Limited's sole discretion of an Update of the Licensed Programs or Program Documentation (category "E").
5.2.6. No Technical Support entitlement (category "F").
5.2.7. All attendance's to the site shall be charged at IP Products Limited's normal daily rate.
5.3. The Customer shall supply in writing to IP Products Limited a detailed description of any fault requiring Technical Support within category C above and the circumstances in which it arose forthwith upon becoming aware of the same.
5.4. The response Time for category C Technical Support shall be either:-
5.4.1. BASIC SERVICE: between the hours of 9.00am and 5.00pm Monday through Friday (excluding bank and other public holidays). IP Products Limited shall use its reasonable endeavours to respond by telephone within 4 hours of receipt of a request.
Or
5.4.2. QUICK SERVICE: between the hours of 9.00am and 5.00pm Monday through Friday (excluding bank and other public holidays). IP Products Limited will use its reasonable endeavours to respond by telephone within 1 hour of receipt of a request.
5.5. Technical Support shall not include the diagnosis and rectification of any fault resulting from:-
5.5.1. The improper use operation or neglect of either the Licensed Program Materials or the Designated Equipment.
5.5.2. The modification of the Licensed Programs or their merger (in whole or in part) with any other software.
5.5.3. The use of the Licensed Programs on Equipment other than the Designated Equipment.
5.5.4. The failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by IP Products Limited.
5.5.5. Any repair adjustment alteration or modification of the Licensed Programs by any other person other than IP Products Limited without IP Products Limited's prior consent.
5.5.6. Any breach by the Customer of any of its obligations under any maintenance agreement in respect of the Designated Equipment.
5.5.7. The Customer's failure to install and Use upon the Designated Equipment in substitution for the previous release any Update of the Licensed Programs within 4 days of receipt of the same.
5.5.8. The use of the Licensed Programs for a purpose for which they were not designed.
5.5.9. Corruption of data no matter how caused.
5.5.10. Failure to take proper and timely backups.
5.6. IP Products Limited shall upon request by the Customer provide Technical Support not withstanding that the fault results from any of the circumstances described in clause 5.5. above and shall in such circumstances be entitled to levy Additional Charges in the manner set out in clause 5.8. below and shall also be entitled to levy reasonable Additional Charges if Technical Support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Customer's request as unnecessary.
5.7. Additional Charges shall be levied by IP Products Limited monthly in arrears and shall be payable by the Customer (together with value added tax thereon) within 14 days of receipt of invoice.
6. Property and confidentiality in the licensed program materials.
6.1. The Licensed Program Materials contain confidential information of IP Products Limited and all copyright trade marks and other intellectual property rights i the Licensed Program Materials are the exclusive property of IP Products Limited.
6.2. The Customer shall not:-
6.2.1. Save as provided in clause 8 below copy the whole or any part of the Licensed Program Materials.
6.2.2. Modify merge or combine the whole or any part of the Licensed Program Materials with any other software or Documentation,
6.2.3. Assign transfer sell lease rent charge or otherwise deal in or encumber the Licensed Program Materials nor use on behalf of or make available the same to any other third party.
Or
6.2.4. Reverse compile the whole or any part of the Licensed Program Materials from object code into source code.
6.3. The Customer shall:-
6.3.1. Keep confidential the Licensed Program Materials and limit access to the same to those of its employees agent and sub-contractors who either have a need to know or who are engaged in the Use of the Licensed Programs (including where appropriate the Program Documentation).
6.3.2. Reproduce on any copy of the Licensed Program Materials IP Products Limited's copyright and trade mark notices.
6.3.3. Maintain an up-to-date written record of the number of copies of the Licensed Program Materials and their location and upon request forthwith produce such record to IP Products Limited.
6.3.4. Without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of IP Products Limited in the Licensed Program Materials.
6.4. The Customer shall inform all relevant employees agents and sub-contractors that the Licensed Program Materials constitute confidential information of IP Products Limited and that all intellectual property rights therein are the property of IP Products Limited and the Customer shall take all such steps as shall be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of this clause 6.
7. Copying of the Licensed Program Materials
7.1. The Customer shall be entitled to make one back-up copy of each of the Licensed Programs. Any such copy shall in all respects be subject to the terms and conditions of this agreement and shall be deemed to form part of the Licensed Programs.
7.2. The Customer shall not be entitled to copy in whole or in part the Program Documentation.
8. Use on non-designated equipment and location of the designated equipment
8.1. If the Designated Equipment is for any reason inoperable the Customer shall be entitled without extra charge to use the Licensed Programs upon such alternative machine as IP Products Limited shall approve (such approval not to be unreasonably withheld) until such time as the Designated Equipment once more becomes operable.
8.2. The Customer shall not be entitled to replace the Designated Equipment without the prior consent of IP Products Limited (such consent not to be unreasonably withheld).
8.3. If the Customer shall move the Designated Equipment from the Site to a new location then without prejudice to the provisions of clause 3.3. above IP Products Limited shall be entitled to make such reasonable increase to the License Fee as shall be necessary to take account of any increased costs that it shall incur in providing Technical Support at the new location.
9. Warranty
9.1. Subject to the expectations set out in clause 9.4. below and the limitations upon its liability in clause 10 below IP Products Limited warrants that:-
9.1.1. Its title to and property in the Licensed Program Materials is free and encumbered and that it has the right power and authority to licence the same upon the terms and conditions of this agreement.
9.1.2. Where IP Products Limited have supplied the Licensed Program Materials the media upon which they are stored will for a period of 30 days from the Commencement Date be free from defects in materials design and workmanship.
9.1.3. It will perform the Services with reasonable care and skill.
9.2. The Customer shall give notice to IP Products Limited as soon as it is reasonably able upon becoming aware of a breach of warranty.
9.3. Subject to clause 9.4. below IP Products Limited shall remedy any breach of warranties set out in clauses 9.1.2. and 9.1.3. above by the provision of Technical Support (Category C Quick Service) free of charge.
9.4. IP Products Limited shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clause 5.5. above.
9.5. Without prejudice to the foregoing IP Products Limited does not warrant that the Use of the Licensed Programs will meet the Customer's data processing requirements or that the operation of the Licensed Programs (including where in machine-readable form the Program Documentation) will be uninterrupted or error free.
9.6. Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Licensed Program Materials and the provision of the Services are hereby excluded.
10. Limitation of liability.
10.1. The following provisions set out IP Products Limited's entire liability (including liability for the acts and omissions of its employees agents and sub-contractors) to the Customer in respect of:-
10.1.1. Any breach of its contractual obligations arising under this agreement.
10.1.2. Any representation statement or tortious act or omission including negligence arising under or in connection with this agreement including THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 10.
10.2. Any act or omission on the part of IP Products Limited or its employees agents or sub-contractors falling within clause 10.1. be known as an "Event of Default".
10.3. IP Products Limited's liability to the Customer for death or injury resulting from its own or that of its employees' agents' or sub- contractors' negligence shall not be limited.
10.4. Subject to the limits set out in clause 10.5.1. below IP Products Limited shall accept liability to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of IP Products Limited or its employees agents or sub-contractors.
10.5. Subject to the provisions of clause 10.3. above IP Products Limited's entire liability in respect of any Event of Default shall be limited to damages of an amount equal to:-
10.5.1. 5,000 pounds in the case of and Event of Default falling within clause 10.4. above.
10.5.2. In the case of any other Event of Default the aggregate of the Licence Fee paid in the immediate preceding period of 12 months.
10.6. Subject to the clause 10.3. above IP Products Limited shall not be liable to the customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or IP Products Limited had been advised of the possibility of the Customer incurring the same.
10.7. If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
10.8. The Customer hereby agrees to afford IP Products Limited not less than [28] days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.
10.9. Except for an Event of Default arising under clause 10.3. above IP Products Limited shall not be liable to the customer for any Event of Default unless the Customer shall have given notice of the same to IP Products Limited within [2] years of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware have.
10.10 Nothing in this clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
11. Intellectual property rights indemnity
11.1. IP Products Limited will indemnify the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Licensed Program Materials by the Customer infringes the patent copyright registered design of trade mark rights of said third party (an "Intellectual Property nfringement") provided that the Customer:-
11.1.1. Gives notice to IP Products Limited of any Intellectual Property Infringement forthwith upon becoming aware of the same.
11.1.2. Gives IP Products Limited the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express instructions of IP Products Limited.
11.1.3. Acts in accordance with the reasonable instructions of IP Products Limited and gives IP Products Limited such assistance as it shall reasonably require in respect of the conduct of the defence including without prejudice to the generality of the foregoing the filing of all pleadings and the provision of all relevant documents.
11.2. IP Products Limited shall reimburse the Customer its reasonable costs incurred in complying with the provisions of clause 11.1. above.
11.3. IP Products Limited shall have no liability to the Customer in respect of an Intellectual property Infringement if the same results from any breach of the Customer's obligations under this agreement.
11.4. In the event of an Intellectual Property Infringement IP Products Limited shall be entitled at its own expense and option either to:-
11.4.1. Procure the right for the Customer to continue using the licensed Program Materials
Or
11.4.2. Make such alterations modifications or adjustments to the Licensed Program Materials that they become non- infringing without incurring a material diminution in performance or function.
Or
11.4.3. Replace the Licensed Program Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
11.5. If IP Products Limited in its reasonable judgement is not able to exercise any of the options set out at clauses 11.4.1., 11.4.2. or 11.4.3. above within 90 days of the date it received notice of the Intellectual Property Infringement then the Customer without prejudice to any other rights or remedies it may have been hereunder or at law shall be entitled to terminate this agreement by 30 days' notice upon IP Products Limited. Upon any such termination the provisions of clause 15.3. below (but not 15.4.) shall apply.
11.6. The provisions of clause 10 above shall not apply to this clause 11.
12. Confidentiality
12.1. Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:-
12.1.1. Trivial or obvious.
12.1.2. Already in its possession other than as a result of a breach of this clause.
12.1.3. In the public domain other than as a result of a breach of this clause.
12.2. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 12.11. above by its employees agents and sub-contractors.
13. Duration of this agreement
13.1. This agreement shall continue for the Initial Period and thereafter unless and until terminated in accordance with the provisions of clause 15 below.
14. Customer's representative
14.1. The Customer shall communicate to IP Products Limited upon the date hereof the identity of the person(s) within its undertaking at the Site who shall act as the sole contact point and channel of communication for the provision by IP Products Limited of the Services during the currency of this agreement. The Customer shall forthwith inform IP Products Limited of any change in the identity of any such person(s).
15. Termination
15.1. This agreement may be terminated:-
15.1.1. By the Customer upon giving not less than 90 days' notice to IP Products Limited prior to the expiry of the initial period and thereafter 90 days notice prior to the annual renewal date which shall be the anniversary of the contract date.
15.1.2. Forthwith by IP Products Limited if the Customer fails to pay the Licence Fee or any Additional Charges on the due date for payment.
15.1.3. Forthwith by either party if the other commits any material breach of any term of this agreement (other than one falling within 15.1.2. above) and which (in the case of a breach capable of being remedied) is not remedied within [28] days of a written request to do so.
15.1.4. Forthwith by either party if the other convenes a meeting of its creditors or if a proposal is made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of ) its creditors or if the other is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
15.2. Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15.3. Subject to clause 15.4. below within [28] days of the termination of this agreement (howsoever and by whomsoever occasioned) the Customer shall destroy all copies of the Licensed Program Materials in its possession and a duly authorised officer of the Customer shall certify in writing to IP Products Limited that the Customer has complied with such obligation.
15.4. Notwithstanding the provisions of clause 15.3. above the Customer shall be entitled for a period of [two] years from the date of termination to deep one copy of the Licensed Program Materials free of charge in a fire proof room for archival purposes. If the Customer uses any of the Licensed Programs other than for archival purposes it shall forthwith become liable to pay IP Products Limited its then current charges for the use of the Licensed Programs or any equivalent software then Licensed in substitution for the Licensed Programs.
16. Force Majeure
16.1. Neither party hereto shall be liable for any breach or its obligations hereunder resulting from causes beyond its reasonable control including (without limitation) fire strikes (of its own or other employees) delays in transportation inability to obtain supplies and raw materials or requirements or regulations of any civil or military authority (an "Event of Force Majeure").
16.2. If a default due to an Event of Force Majeure continues for more than 4 weeks then the party not in default shall be entitled to terminate this agreement and neither party shall have any liability to the other in respect of the termination of this agreement as a result of an Event of Force Majeure.
17. Waiver
17.1. The Waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have had hereunder operate as a waiver of any breach or default by the other party.
18. Notices
18.1. Any notice or other document to be given herunder shall be delivered or sent by first class post to the address of the other party set out in this agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery and (if sent by post) upon the expiration of 48 hours after posting.
19. Invalidity and Serverability
19.1. If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
20. Entire agreement
20.1. IP Products Limited shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by a duly authorised representative or IP Products Limited in writing or expressly incorporated or referred to in this agreement.
20.2 The Customer accepts that the Licensed Program Materials were not designed and produced to its individual requirements and that it was responsible for their selection.
21. Assignment and sub-licensing
21.1. The Customer shall not be entitled to assign this agreement nor any of its rights or obligations hereunder nor sub-licence the use (in whole or in part) of the Licensed Program Materials without the prior consent of IP Products Limited.
22. VAT
22.1. Except where specifically stated all amounts stated in this Agreement are exclusive of value added tax and any value added tax arising in respect of any supply made herunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the other party in addition to any other consideration payable therefor.
23. Headings
23.1. Headings to clauses in this agreement are for the purpose of and identification only and shall not affect their interpretation.
24. Law
24.1. This agreement shall be governed by and construed in accordance with English Law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English courts.