Caliach Licence and Support Agreement
SOFTWARE AND SUPPORT LICENCE
Prior to using the Software (as defined below) you must complete and return to Caliach Limited, a company incorporated and registered in England with company number 02496263 whose registered office is at PO Box 1295, 20 Station Road, Gerrards Cross, Buckinghamshire, SL9 8EL (the "Licensor") the Customer Registration Form. You are not entitled to use the Software and will not be entitled to the Services or to receive replacements for defective media until it has been received by the Licensor.
The Licensor is authorised to license and support the software referred to in the attached License Order Form, including, without limitation, all Updates, Customisations and New Versions provided to the Licensee under this Agreement (the "Software") which the Licensee has selected to run on its computer system (the "System"). Upon execution of this Agreement by the Licensee, the Licensee accepts a non-exclusive, non-transferable licence to Use the Software on the System (the "Licence") by the number of concurrent users all as specified in the Licence Order Form for the duration of the Licence. Upon execution of this Agreement by the Licensor and in consideration of the payment of the Licence Fee by the Licensee, the Licensor grants to the Licensee the Licence and undertakes to support the Software upon the terms and subject to the conditions contained in this Agreement.
1. Grant of Licence
Grant of the Licence entitles the Licensee to:
1.1 receive the number of copies of the Software as set out in the Licence Order Form for Use on the System together with the necessary documentation to install and Use the same;
1.2 an initialisation "licence key" to enable the Licensee to load, install and Use the Software by the number of concurrent users specified in the Licence Order Form;;
1.3 use the Software in accordance with the provisions of clause 4 of this Agreement;
1.4 use of the Licensor's standard support service for the Software more particularly described in clause 2.1 which is to be provided by the Licensor to the Licensee (the "Support");
1.5 receive releases of the Software or the Support Software (as the case may be) which correct identified faults within the Software or the Support Software (as the case may be), add functionality or otherwise amend or upgrade the Software or the Support Software (as the case may be), but which do not constitute a New Version (the "Updates");
1.6 receive information on releases of any new version of the Software which from time to time is publicly marketed and offered for purchase by the Licensor, being a version which contains such significant differences from the previous version as to be generally accepted in the marketplace as constituting a new product (the "New Version"); and
1.7 subject to payment of the charges in accordance with clause 4.7, receive releases of New Versions.
1.8 In this Agreement "Services" includes (as appropriate) the Support, the Updating Service and any Optional Services which are included within an order for Optional Services under clause 2.7.
2. The Services
2.1 The Licensor:
2.1.1 shall supply a telephone, email and fax help-desk to provide first-line technical support to the Licensee from within the United Kingdom between the hours of 09.00 and 17.00 (UK time) Monday to Friday, except on days which are bank holidays in England to assist the Licensee in the operation and use of the Software; and
2.1.2 may from time to time provide the Licensee with support and diagnostic software (the "Support Software") and the Support Software shall be subject to the terms of the Licence but shall be limited to the extent of the Support only.
2.2 The Licensee acknowledges and agrees that:
2.2.1 it shall bear all communication costs relating to a request for Support;
2.2.2 Support will be provided only to the System Manager named in the Licence Order Form and the Licensor shall not be obliged to provide it to any person other than the System Manager without the prior written consent of the Licensor;
2.2.3 the Services will be provided in the English language only; and
2.2.4 the Support is not designed to be used as a substitute for formal training, and the Licensor reserves the right to deny telephone, email and/or fax support (as the case may be) should, in its sole discretion, the Licensee be deemed to be abusing a support facility in this manner.
2.3 The Licensor shall issue Updates in whatever form (including, but not limited to, by way of a local fix or patch of the Software or a temporary by-pass solution) as and when required and in its absolute discretion (the "Updating Services").
2.4 The Licensor may, on prior notice to the Licensee, make changes to the Services, provided such changes do not have a material adverse effect on the Licensee's business operations.
2.5 The following services are not included in the Support and Updating Service:
2.5.1 software installation or other activities that would require the presence of the Licensor's staff on the Licensee's site;
2.5.2 rectification of lost or corrupted data arising for any reason other than the Licensor's own negligence;
2.5.3 customisation to the Software or the operation of any part of the Software or the Support Software that has been modified by the Licensee;
2.5.4 repair of data files that cannot be undertaken by standard procedures provided in the Software;
2.5.5 support for any other software program other than the Software or the Support Software including any operating system that is not listed as part of the Software;
2.5.6 support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Software, the Support Software, the System or the operating environment;
2.5.7 attendance to faults caused by using the Software or the Support Software outside design or other specifications or outside the provisions laid down in any Documents, or caused by operator error or omission;
2.5.8 diagnosis and/or rectification of problems not associated with the Software or the Support Software; or
2.5.9 customisation or rewriting of the Software at the Licensee’s request.
2.6 The Licensor shall have no obligation to provide the Services where faults arise from:
2.6.1 misuse, incorrect use of or damage to the Software or the Support Software from whatever cause (other than any act or omission by the Licensor), including failure or fluctuation of electrical power;
2.6.2 failure to maintain the necessary environmental conditions for use of the Software or the Support Software (as the case may be);
2.6.3 use of the Software or the Support Software in combination with any equipment or software not provided by the Licensor or not designated by the Licensor for use with any Update, or any fault in any such equipment or software;
2.6.4 relocation of the Software by any person other than the Licensor or a person acting under the Licensor's instructions;
2.6.5 any breach of the Licensee's obligations under this Agreement howsoever arising or having the Software maintained by a third party;
2.6.6 any update or upgrade to the Software or the Support Software not authorised by the Licensor; or
2.6.7 operator error.
2.7 The Licensee may from time to time request the Licensor to supply services which are not included within the scope and limitations of clauses 2.1 to 2.6 (inclusive) (the "Optional Services") including, without limitation, customisation of the configuration of the Software ("Customisation"). Where the Licensor agrees to provide Optional Services (such agreement to be at the Licensor's absolute discretion) such Optional Services shall be provided to the Licensee at the Licensor's rates then in force and such agreement shall be embodied in an order for Optional Services. Each order for Optional Services shall be made under, and shall incorporate the terms of this Agreement and in addition any Customisation will be provided in accordance with the Caliach Vision ERP Customisation Support Policy as in force from and time to time and published on the Licensor's website at http://www.caliach.com/caliach/calvision/license/custom_support.html.
3. Issue and Use of Software
3.1 Upon execution and return of this Agreement and payment of the first annual Licence Fee, the Licensor shall issue to the Licensee the licence key authentication instructions together with the Documents to Use the same. Access to and use of the Software by the Licensee shall be limited to no more than the designated number of Users specified in the Licence Order Form.
3.2 Where the licence key enables the Software to be customised for Use by both the Licensee and such other trading entities or companies as nominated by the Licensee on the installation of the Software ("Nominated Named Users") the authority to Use the Software conferred by this Agreement shall extend to the Nominated Named Users for such time only as they operate from the same manufacturing location as the Licensee (the "Common Site"). Continued Use of the Software by any Nominated Named User which has ceased to operate from the Common Site shall require such Nominated Named User to enter into a separate licence agreement with the Licensor.
3.3 For the purposes of this Agreement "Use" shall mean and include:
3.3.1 utilisation of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk, CD ROM or other storage device) of the System for the processing of the System instructions or statements contained in such Software;
3.3.2 merging the whole or any part of the Software in machine-readable form into another software program; or
3.3.3 storing the whole or any part of the Software on the System or other storage unit or disk.
3.4 For the purposes of this Agreement "concurrent use" shall mean simultaneous use of the Software by the number of users of the Licensee and, where relevant, the Nominated Named Users, specified in the Licence Order Form. Additional concurrent users may be added by signing a separate licence agreement.
4. Licence Fee
4.1 The licence fee as set out in the Licence Order Form (the "Licence Fee") entitles the Licensee to Use the Software for the configuration and number of concurrent users as detailed therein and to the Support and Updating Services for the stated period (if paying on a rental basis, such period being the month or quarter paid in advance). At the end of that period, the Licence shall automatically expire and the Software shall be rendered unusable to the Licensee and the Licensee's right to receive the Services shall cease until such time as the Licensee renews the Licence by payment of the renewal Licence Fee and/or Annual Support Fee as required by the Licensor.
4.2 The Licence Fee is payable in advance unless otherwise agreed in writing by the Licensor and may be subject to annual review upon thirty (30) days' prior written notice from the Licensor. Such reviewed fee shall take effect from renewal of the Licence.
4.3 In the event that the System is inoperable or requires, or is under, repair, the Licensee shall report the same to the Licensor for permission to Use the Software on a back-up system at no extra charge, until the System is operational.
4.4 The Licence Fee includes the Support and Updating Services, but excludes any sum payable by the Licensee in respect of the licence of New Versions.
4.5 All charges hereinbefore referred to are exclusive of and net of any taxes, duties or such other additional sums including, but without prejudice to the foregoing generality, value added or purchase tax, excise tax, tax on sales, property or use; import or other duties, whether levied in respect of this Agreement, the Software, its use or otherwise.
4.6 The Licensee may request in writing a change in the number of concurrent users from that stated in the Licence Order Form. The Licensor shall evaluate such requests and respond to the Licensee with approval or disapproval of the request, together with a quote for any additional set-up or ongoing costs to the Licensee for the change. On acceptance by the Licensee, the Licensor shall provide such access as agreed for the remainder of the term and the Licensee shall pay the Licensor the additional amount agreed.
4.7 Charges for any New Version or Optional Services, including without limitation any Customisation, to the Licensee shall be agreed in writing before performance or supply by the Licensor, and shall be charged and invoiced to the Licensee by the Licensor (and paid by the Licensee) following acceptance by the Licensor of the Licensee's written order for such New Version or Optional Service (as the case may be).
4.8 The Licensee shall pay all costs (at the Licensor's then prevailing rates) and reasonable expenses incurred by the Licensor for work carried out by the Licensor in connection with any fault which is not covered by this Agreement.
4.9 Where the Software is dependent on other software or other products, the Licensee cannot have the Services in respect of the Software without also having and paying for such services with respect to the software or other product upon which it depends.
5. Bugs and Feature Enhancement
5.1 The Licensor shall be the sole judge of whether a problem encountered by a Licensee constitutes a Software error ("Bug"). If accepted as a Bug, the Licensor undertakes to use its reasonable endeavours to rectify the Bug in the following Update. In general, although not exclusively, Bugs are events or results of actions using the Software which do not correspond to the behaviour predicted for the Software published in the Software specification, reference book or on-line help.
5.2 The Licensee acknowledges and agrees that the Software's failure to correspond with behaviour predicted for the Software in the Documents may be due to an error or omission contained within the Documents rather than a Bug. If the Licensor in its absolute discretion determines that the Software's failure to correspond with behaviour predicted for the Software in the Documents is due to an error or omission contained within the Documents rather than a Bug the Licensor undertakes to use its reasonable endeavours to make such changes and corrections as are required to the Documents.
5.3 If requested by the Licensor the Licensee shall provide whatever information, reports and data as is considered reasonable by the Licensor to enable the cause of a problem reported by the Licensee to be fully identified and verified by the Licensor and the Licensor undertakes to hold such information in strict confidence.
5.4 The Licensor has sole discretion over the adoption of program functional changes into Updates or New Versions. In general, enhancements are considered by the Licensor to fall into the following categories:
5.4.1 minor enhancements of general value to all users may be incorporated into Updates;
5.4.2 major enhancements of general value to all users may be incorporated into Updates or New Versions subject to clause 4.7.
5.4.3 Customisations may be incorporated into Updates or New Versions if the Licensor considers such Customisation to be of general value to all users.
6. Licensee's Undertakings
6.1 The Licensee undertakes not to perform any of the acts referred to in this clause 6.1 except to the extent and only to the extent permitted by the applicable law to the Licensee as a lawful user (i.e. a party with an express right to use) of the Software and only then for the specific limited purposes stated in such applicable law or hereunder. The Licensee undertakes:
6.1.1 not to copy the Software (other than for normal system operation and as specified in clause 3 above) or the Support Software (other than in connection with the Support) nor otherwise reproduce the same provided that the Licensee may copy the Software for back-up purposes or incidentally, in the course of converting the Software in accordance with clause 6.1.3;
6.1.2 except in accordance with clause 10.5, not to translate, adapt, vary, modify the Software or Support Software; and
6.1.3 not to disassemble, decompile or reverse engineer the Software or Support Software provided however that in the case of decompilation of the Software, the Licensee may incidentally decompile the Software only if it is essential so to do in order to achieve interoperability of the Software with another software program ("Permitted Purpose") and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party whom it is not necessary to disclose or communicate such information without the Licensor's prior written consent and is not used to create any software which is substantially similar to the expression of the Software nor used in any manner which would be restricted by copyright.
6.2 In addition, the Licensee undertakes:
6.2.1 to maintain accurate and up-to-date records of the number and location of all copies of the Software and Support Software;
6.2.2 to supervise and control Use of the Software and Support Software in accordance with the terms of this Agreement;
6.2.3 to install Updates forthwith upon receipt;
6.2.4 to reproduce and include the copyright notice of the Licensor on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software and Support Software made herein;
6.2.5 not to provide or otherwise make available the Software or Support Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the Licensee's employees, or where relevant employees of the Nominated Named Users, without prior written consent from the Licensor; and
6.2.6 within fourteen (14) days after the date of termination or discontinuance of this Agreement for whatever reason (other than with respect to the Services only), to delete or remove the Software from all computer equipment in its possession and, in the event of termination of the Services, the Support Software and immediately destroy or return to the Licensor (at the Licensor's option) all copies, in whole and in part, in any form including partial copies or modifications of the Software or Support Software received from the Licensor or made in connection with this Agreement and all documentation relating thereto and to furnish the Licensor with a certificate, certifying that the same has been done, unless the Licensee has obtained the Licensor's prior written authorisation to retain one copy for archive purposes only.
6.3 If the Licensee fails to comply with clause 6.2.3 of this Agreement, the Licensee may suspend provision of the Services until such time as the Licensee installs such Update.
6.4 If the Licensor releases a New Version and the Licensee decides not to acquire and install such New Version, the Licensor may suspend the Services or terminate this Agreement by giving the Licensee not less than twelve (12) months' written notice.
6.5 The Licensee shall:
6.5.1 on its own account back-up all data and program files prior to carrying out actions on the data or program recommended by the Licensor and shall subsequently check the consequences and determine any further action; and
6.5.2 carry out procedures as recommended in the Documents.
6.6 The Licensee shall indemnify and hold the Licensor harmless from and against all loss, claims, costs, expenses, damages and liabilities, including reasonable legal fees, which the Licensor may suffer or be required to pay arising out of injuries to persons (including death) or damage to property resulting from or pertaining to the use or operation of the Software or the Support Software occasioned by the negligence or willful misconduct of the Licensee's agents, employees, licensees or invitees.
6.7 The Licensee shall provide the Licensor and all persons duly authorised by the Licensor with full, safe and uninterrupted access including remote access to the Licensee's premises, facilities, the Software and the Support Software as may reasonably be required for the purpose of performing the Services.
6.8 The Licensee shall indemnify the Licensor against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Licensor as a result of the Licensee's breach of this Agreement howsoever arising or any negligent or wrongful act of the Licensee, its officers, employees, contractors or agents.
7. Data Protection
In this clause 7, the following definitions apply:
7.1.1 the terms "data controller", "data processor", "data subject" and "processing" bear the respective meanings given them in the Data Protection Act 1998, and "data protection principles" means the eight data protection principles set out in Schedule 1 to that Act;
7.1.2 data includes Personal Data; and
7.1.3 Licensee Personal Data and Licensor Personal Data mean any Personal Data provided by or on behalf of the Licensee or the Licensor, respectively.
7.2 The Licensor shall:
7.2.1 only carry out processing of any Licensee Personal Data on the Licensee's instructions;
7.2.2 implement appropriate technical and organisational measures to protect any Licensee Personal Data against unauthorised or unlawful processing and accidental loss or damage; and
7.2.3 only transfer Customer Personal Data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject.
7.3 The Licensor shall promptly and fully notify the Licensee in writing of any notices in connection with the processing of any Licensee Personal Data, including subject access requests, and provide such information and assistance as the Licensee may reasonably require.
7.4 The Licensee acknowledges that the Licensor will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which the Licensor carries out under this Agreement.
7.5 Except as expressly provided otherwise, this Agreement does not transfer ownership of, or create any licences (implied or otherwise), in any intellectual property rights in any data.
8.1 The Licensee acknowledges that software in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this Agreement.
8.2 The Licensee accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Licensee.
8.3 The Licensor represents and warrants to the Licensee that the Services will be performed:
8.3.1 in accordance with all applicable laws and regulations; and
8.3.2 with all reasonable skill and care.
8.4 If, during the term of this Agreement, the Licensor receives written notice from the Licensee of any breach by the Licensor of the representations and warranties contained in clause 8.3, the Licensor shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate this Agreement immediately on written notice to the Licensee and repay to the Licensee all sums which the Licensee has paid to the Licensor under this Agreement during the year in which the termination occurs, less a reasonable charge for the Licensee’s use of the Software and the Services performed up to the date of termination. The Licensee shall provide all information reasonably necessary to enable the Licensor to comply with its obligations under this clause 8.4. This clause sets out the Licensee's sole remedy and the Licensor's entire liability for breach of clause 8.3.
8.5 If the Licensee discovers a material error which substantially affects the Licensee's use of the Software and notifies the Licensor of the error in writing within ninety (90) days from the date of this Agreement (the "warranty period") the Licensor shall at its sole option either refund the Licence Fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not so comply PROVIDED THAT such non-compliance has not been caused by:
8.5.1 any modification, variation or addition to the Software not performed by the Licensor;
8.5.2 incorrect use, abuse or corruption of the Software;
8.5.3 use of the Software with other software or on equipment with which it is incompatible; or
8.5.4 use of the Software outside the terms of this Agreement; and the Licensee provides all the information that may be necessary to assist the Licensor in resolving the error, including a documented example of any defect or fault, or sufficient information to enable the Licensor to recreate the defect or fault.
8.6 This Agreement sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software, Support Software, Documents and Services. To the fullest extent permitted by the applicable law, the Licensor disclaims all other conditions, warranties, representations (whether written or oral) or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, either express or implied, including but not limited to any implied conditions, warranties or other terms as to satisfactory quality, fitness for any particular purpose, or the use of reasonable care and skill.
8.7 Although the Licensor does not warrant that the Software shall be free from all known viruses it has used commercially reasonable efforts to check for the most commonly known viruses and has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice, but the Licensee is solely responsible for virus scanning the Software.
8.8 The Licensee acknowledges that for versions of the Software which are non-English language versions the Licensor has used translation software to translate the screen-readable or printable text contained within the Software from the English language version of the Software. The Licensor makes no representations or warranties that any screen-readable or printable text contained within a non-English language version of the Software is an accurate translation of the screen-readable or printable text contained within the screen-readable or printable text of the English language version of the Software and it is the Licensee's responsibility to ensure the screen-readable or printable translated text and corresponding functionality of the Software is as required for its purposes.
9. Licensor's Liability
9.1 Subject to clause 9.3, the Licensor's liability for losses suffered by the Licensee arising out of or in connection with this Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude:
9.1.1 loss of income;
9.1.2 loss of business profits or contracts;
9.1.3 business interruption;
9.1.4 loss of the use of money or anticipated savings;
9.1.5 loss of information;
9.1.6 loss of opportunity, goodwill or reputation;
9.1.7 loss of, damage to or corruption of data; or
9.1.8 any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, provided that this clause 9.1 shall not prevent claims for loss of or damage to the Licensee's tangible property that fall within the terms of clause 8.5 or any other claims for direct financial loss that are not excluded by any of categories 9.1.1 to 9.1.8 (inclusive) of this clause 9.1.
9.2 Subject to clause 9.4, the Licensee agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Licensor shall not in any circumstances have any liability otherwise than in accordance with the express terms of this Agreement.
9.3 Subject to clause 9.1 and clause 9.4, the Licensor's maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the Licence Fee.
9.4 The Licensor does not exclude liability or limit liability for:
9.4.1 death or personal injury to the extent only that the same arises as a result of the negligence of the Licensor, its employees, agents or authorised representatives;
9.4.2 fraud or fraudulent misrepresentation;
9.4.3 breach of the 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
9.4.4 any other liability which cannot be excluded under applicable law.
9.5 Subject to clauses 9.1, 9.2, 9.3 and 9.4, the Licensor's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
9.6 No representation or warranty is given by the Licensor that all faults will be fixed, or will be fixed within a specified period of time.
9.7 The Licensee acknowledges that it is exclusively responsible for:
9.7.1 ensuring that its staff are trained in the proper use and operation of the Software;
9.7.2 ensuring the security, completeness and accuracy of all inputs and outputs;
9.7.3 making regular backup copies of its data to ensure recovery of its data if the Software malfunctions; and
9.7.4 the selection, use of and results obtained from any other programs, equipment, materials or services used in conjunction with the Software;
9.8 The Licensee acknowledges that:
9.8.1 the level of the Licence Fee reflects the allocation of risk between the parties set out in clause 8 and this clause 9; and
9.8.2 it is in a better position than the Licensor to assess and manage its risk in relation to use of the Software.
9.9 All dates supplied by the Licensor for the delivery of Updates, New Versions or the provision of Services shall be treated as approximate only. The Licensor shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.10 All references to the Licensor in this clause 9 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of the Licensor, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause 9.
10. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
10.1 The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software, the Support Software or the Documents shall be and remain the sole property of the Licensor or such other party as may be identified therein or thereon (the "Owner"). The Licensee shall not during or at any time after the expiry or termination of this Agreement (whether in whole or with respect to the Services only) in any way question or dispute the ownership by the Licensor or the Owner thereof.
10.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement or if the Licensor customises or rewrites the Software at the request of the Licensee, the Licensee acknowledges the same shall be the property of the Licensor unless otherwise agreed in writing by the Licensor.
10.3 The Licensee shall indemnify the Licensor fully against all liabilities, costs and expenses which the Licensor may incur as a result of work done in accordance with the Licensee's specifications involving infringement of any patent or other proprietary right.
10.4 The Licensee acknowledges and agrees that the Licensor and/or its licensors own all intellectual property rights in the Software, Support Software, Documents and the Services provided under this Agreement. Except as expressly stated herein, this Agreement does not grant the Licensee any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered) or any other rights or licences in respect of the Software, Support Software, Documents and the Services.
10.5 If the Software is a non-English version of the Software the following clauses apply:
10.5.1 The Licensor may from time to time provide a facility for the Licensee to review the translations of the pop-up text windows within the Software against the pop-up text windows of the English language version of the software via an internet link to the Licensor's web server. Using such facility the Licensee may amend the relevant translation of the non-English text within the pop-up text windows of the Software and save such amendments within its copy of the Software (the "Translations"). The Translations will also be submitted to the Licensor's server database for approval and, if approved by the Licensor, such Translations may be incorporated in a subsequent version, or update to, of the Software.
10.5.2 The Licensee hereby assigns to the Licensor all existing and future intellectual property rights in the Translations to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this Agreement, the Licensee holds legal title in these rights on trust for the Licensor.
10.5.3 The Licensee undertakes to do all acts necessary to confirm that absolute title in all intellectual property rights in the Translations has passed, or will pass, to the Licensor.
10.5.4 The Licensee waives any moral rights in the Translations to which it is now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such Translations or other materials infringes the Licensee's moral rights.
10.5.6 The Licensee acknowledges that no fees or compensation are due or may become due to the Licensee in respect of the performance of its obligations under this clause 10.5.
10.5.7 The Licensee undertakes to execute all documents, make all applications, give all assistance and do all acts and things as may, in the opinion of the Licensor, be necessary or desirable to vest the intellectual property rights in, and to register in, the name of the Licensor and to defend the Licensor against claims that works embodying intellectual property rights infringe third party rights, and otherwise to protect and maintain the intellectual property rights in the Translations.
10.5.8 The Licensee irrevocably appoints the Licensor to be its attorney in its name and on its behalf to execute documents, use the Licensee's name and do all things which are necessary or desirable for the Licensor to obtain for itself or its nominee the full benefit of this clause 10.5. A certificate in writing, signed by any director or the secretary of the Licensor, that any instrument or act falls within the authority conferred by this Agreement shall be conclusive evidence that such is the case so far as any third party is concerned.
10.5.9 The Licensee undertakes that its use of the Licensor's translation improvement contribution facility set out at clause 10.5.1 will comply with the standards set out in the Licensor's Rules to Follow for Contributions as in force from time to time and published on the Licensor's website at http://www.caliach.com/caliach/vision/v50help-en/general/wxlatecrowd.html. The Licensee acknowledges that the Licensor has the right to block the Licensee's use of the translation improvement contribution facility if, in the Licensor's opinion, the Licensee's use of it does not comply with the standards set out in the Licensor's Rules to Follow for Contributions.
10.6 In this Agreement "Documents" means any documents provided by the Licensor for the Software or the Support Software in either printed text or machine-readable form, including the technical documentation, program specification and operations manual.
11. Intellectual Property Rights Indemnity
11.1 The Licensor undertakes at its own expense, to defend the Licensee or, at the Licensor's option, to settle any claim or action brought against the Licensee alleging that the possession, use, development, modification or maintenance of the Licensed Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK intellectual property rights of a third party ("Claim") and the Licensor shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Licensee as a result of or in connection with any such Claim. For the avoidance of doubt, this clause 11.1 shall not apply where the Claim in question is attributable to possession, use, development, modification or maintenance of the Licensed Software (or any part thereof) by the Licensee other than in accordance with the terms of this Agreement, use of the Licensed Software in combination with any hardware or software not supplied or specified by the Licensor if the infringement would have been avoided by the use of the Licensed Software and not so combined, or use of a non-current release of the Licensed Software.
11.2 If any third party makes a Claim, or notifies an intention to make a Claim against the Licensee, the Licensor's obligations under clause 11.1 are conditional on the Licensee:
11.2.1 as soon as reasonably practicable, giving written notice of the Claim to the Licensor, specifying the nature of the Claim in reasonable detail;
11.2.2 not making any admission of liability, agreement or compromise in relation to the Claim without the Licensor's prior written consent (such consent not to be unreasonably conditioned, withheld or delayed);
11.2.3 giving the Licensor and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within its power or control, so as to enable the Licensor and its professional advisers to examine them and to take copies (at its expense) for the purpose of assessing the Claim; and
11.2.4 subject to the Licensor indemnifying the Licensee to its reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Licensor may reasonably request to avoid, dispute, compromise or defend the Claim.
11.3 If any Claim is made, or in the Licensor’s reasonable opinion is likely to be made, against the Licensee, the Licensor may at its sole option and expense:
11.3.1 procure for the Licensee the right to continue using and/or maintaining the Licensed Software (or any part thereof) in accordance with the terms of this Agreement;
11.3.2 modify the Licensed Software (or infringing part thereof ) so that it ceases to be infringing;
11.3.3 replace the Licensed Software (or infringing part thereof) with non-infringing software; or
11.3.4 terminate this Agreement immediately by notice in writing to the Licensee and refund the Licence Fee paid by the Licensee as at the date of termination (less a reasonable sum in respect of the Licensee's use of the Licensed Software to the date of termination) on removal, deletion, return and/or destruction (as the case may be) of the Licensed Software in accordance with clause 6.2.6, provided that if the Licensor modifies or replaces the Licensed Software, the modified or replacement software must comply with the warranties contained in clause 8.5 and the Licensee shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
11.4 Notwithstanding any other provision in this Agreement, clause 11.1 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification or maintenance of any open-source software incorporated into the Licensed Software or through the breach of any third-party licence relating to any open-source software so incorporated.
11.5 This clause 11 constitutes the Licensee's exclusive remedy and the Licensor's only liability in respect of Claims and, for the avoidance of doubt, is subject to clauses 9.1 and 9.3.
11.6 Notwithstanding any other provision in this Agreement, clause 11.1 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification or maintenance of any open-source software incorporated into the Software or through the breach of any third-party licence relating to any open-source software so incorporated.
11.7 In this clause 11 the term "Licensed Software" shall be deemed to include the Software and the Support Software.
12. Confidential Information
12.1 All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software, Support Software (other than the ideas and principles underlying the same) or Documents or procedures is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement disclose the same, whether directly or indirectly to any third party without the Licensor's prior written consent.
12.2 The Licensee further agrees that it shall not itself or through any subsidiary, agent or third party modify, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or any supporting software or have any software or other program written or developed for it based on any confidential information supplied to it by the Licensor.
12.3 The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.
13. Force Majeure
The Licensor shall be under no liability to the Licensee in respect of anything which, apart from this clause 13, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of the Licensor which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, Support Software, Documents or the Services; the breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
14.1 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, the Licensor may by notice in writing to the Licensee terminate this Agreement, in whole or at the Licensor's sole option, if any of the following events shall occur, viz.:
14.1.1 if the Licensee is in breach of any term, condition or provision of this Agreement or required by applicable law and fails to remedy such breach (if capable of remedy) within thirty (30) days of having received written notice of such breach from the Licensor;
14.1.2 if the Licensee repeatedly breaches any term, condition or provision of this Agreement in such a manner as to reasonably justify in the Licensor's opinion that the Licensee's conduct is inconsistent with it having the intention or ability to give effect to the terms and conditions of this Agreement; or
14.1.3 if the Licensee, being a body corporate shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation) shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts.
14.2 Upon termination, the Licensee shall pay to the Licensor all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the Software, the Support Software and the Services, under this Agreement or otherwise.
14.3 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Agreement or in law.
14.4 Other than as set out in this Agreement, neither party shall have any further obligation to the other under this Agreement after its termination.
14.5 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including (but not limited to) clause 7, clause 9, clause 10, and clause 12, shall remain in full force and effect.
14.6 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
15.1 This Agreement is binding on the Licensor and the Licensee and their respective successors and assigns.
15.2 The Licensee may not transfer, assign, charge or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, without the prior written consent of the Licensor.
15.3 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement, provided that it notifies the Licensee of the transfer or assignment within thirty (30) days after the date of such transfer or assignment.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party's rights to take subsequent action.
17. No Partnership or Agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
The Licensee shall not, for the duration of this Agreement, and for a period of six (6) months following termination, directly or indirectly induce or attempt to induce any employee of the Licensor who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Agreement to leave the employment of the Licensor.
The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of these terms and conditions of this Agreement.
In the event that any provisions (or part of any provision) contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such provision or part-provision shall to that extent required be severed from the remaining provisions which shall continue to be valid to the fullest extent permitted by law.
21.1 Any notice or the communication to be given by either party under or in connection with this Agreement shall be in writing in the English language addressed to that party at such address, fax number or email address as that party may have specified to the other party in writing for such purposes, or, if no address has been specified, its registered office (if it is a company) or its principal place of business (in any other case) and shall be delivered personally, sent by pre-paid first class or recorded delivery post (for notices sent and received domestically in the UK only), international registered post (airmail) (for notices sent outside the UK), commercial courier, fax or e-mail.
21.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 21.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second day after posting; if delivered by commercial courier or international registered post (airmail), on the date and at the time that the courier's or relevant postal service's delivery receipt is signed; or, if sent by fax or e-mail, twenty-four (24) hours after transmission.
21.3 The provisions of this clause 21 shall not apply to the service of any proceedings or other documents in any legal action.
22. Contract (Rights of Third Parties) Act 1999
Nothing in this Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to this Agreement. The application of the Contract (Rights of Third Parties) Act 1999 to this Agreement is hereby excluded.
23. Entire Agreement
23.1 This Agreement and any document expressly referred to in it constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between the parties, relating to subject matter of this Agreement.
23.2 Both the Licensee and the Licensor acknowledge that, in entering into this Agreement (and the documents referred to in it), neither party relies on any statement, representation, assurance or warranty ("Representation") of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.
23.3 Both the Licensee and the Licensor agree that the only rights and remedies available to the parties arising out of or in connection with a Representation shall be for breach of contract as provided in this Agreement.
23.4 Nothing in this Agreement shall limit or exclude any liability for fraud.
The parties hereby agree that the Agreement concluded between them and constituted on these terms and conditions, its subject matter or its formation (including non-contractual disputes or claims) shall be construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English courts, provided that the Licensor may enforce this Agreement in the Courts of another relevant jurisdiction, including where you reside or hold assets
This Agreement is drafted in the English language. If this Agreement is translated into any other language, the English language text shall prevail.
Created: 8th March 2013
Amendment history: None