1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Licence.
“Acceptance Date”
Means the date when the Supplier issues written acceptance of the Purchase Order at which point and on which date the Licence shall come into existence.
“Back Office Portal Licence”
Means a licence to use the cloud based back office portal required to run the Software.
“CAL”
Means individual login access to the Software (client access licences).
“Customer”
Means the customer as detailed in the Purchase Order.
“Fee”
Means the licence fee payable by the Customer to the Supplier under clause 5.
“Intellectual Property Rights”
Means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Licence”
Means the Licence granted pursuant to these term and conditions and subject to the Privacy Policy.
“Maintenance Release”
Means release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
“New Version”
Means any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
“Privacy Policy”
Means the Supplier’s privacy policy which can be found at www.bizzmob.com/e-clean/index.php/privacy-policy
“Purchase Order”
Means the form of purchase order at the end of this Licence.
“Software”
Means the E-Clean application software including CAL (limited to the number of users specified in the Purchase Order) and the Back Office Portal Licence (limited to the number of users specified in the Purchase Order) and any Maintenance Release which is acquired by the Customer during the subsistence of this Licence.
“Supplier”
Means E-Systems Software Limited registered in England and Wales with Company Number 10847061 of Hope Works, Mowbray Street, Sheffield, United Kingdom, S3 8EL.
“Initial Term”
Means the initial term of the Licence as set out in the Purchase Order.
2. DELIVERY AND USERS
The Supplier shall make available to the Customer the number of CAL’s and Back Office Portal Licences as detailed in the Purchase Order within 3 days of the Acceptance Date. Risk in any tangible media on which the Software is delivered shall pass on delivery.
3. LICENCE
3.1 In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence for the Term to use the Software.
3.2 In relation to scope of use:
3.2.1 for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee or Sub-contractor of the Customer).
3.2.2 for the purposes of clause 3.1, “use of the Software” means loading the Software into temporary memory or permanent storage on the relevant device, provided that installation on a network server for distribution to other computers is not “use” if the Software is licensed under this Licence for use on each computer to which the Software is distributed.
3.2.3 the Customer may not use the Software other than as specified in clause 3.1 and clause 3.2.1 without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
3.2.4 except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
3.3 The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 3.2.5 to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.4 The Customer shall not:
3.4.1 sub-license, assign or novate the benefit or burden of this Licence in whole or in part;
3.4.2 allow the Software to become the subject of any charge, lien or encumbrance; and
3.4.3 deal in any other manner with any or all of its rights and obligations under this agreement,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
3.5 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Licence.
3.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
3.7 Notwithstanding clause 6, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 3.7 shall be made until notice of the identity of the proposed assignee has been given to the other party.
3.8 The Customer shall:
3.8.1 ensure that the number of persons using the Software does not exceed the number of CAL’s and Back Office Portal Licences specified in the Purchase Order (unless it is increased in accordance with clause 6;
3.8.2 keep a complete and accurate record of the users of the Software, and produce such record to the Supplier on request from time to time;
3.8.3 notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person;
3.8.4 pay, for broadening the scope of the licences granted under this Licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 5.3, from such date to the date of payment.
3.9 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
4. MAINTENANCE RELEASES
The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
5. FEES
5.1 The Supplier shall invoice the Customer for the monthly Fee on the 15th day of each month following the Acceptance Date for the duration of the Term. The Customer shall pay to the Supplier the Fee by direct debit to the Supplier’s Bank Account on or before the first day of each month after the invoice date.
5.2 All sums payable under this Licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
5.3 If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 10, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6. ADDITIONAL CAL’S AND BACK OFFICE PORTAL LICENCES
6.1 The Customer may, from time to time during the Term, purchase additional CAL’s and Back Office Portal Licences in excess of the number set out in the Purchase Order and the Supplier shall grant access to the Software to such additional users in accordance with the provisions of this Licence.
6.2 If the Customer wishes to purchase additional CAL’s and Back Office Portal Licences, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional users and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional CAL’s and Back Office Portal Licences within 3 days of its approval of the Customer’s request.
6.3 If the Supplier approves the Customer’s request to purchase additional CAL’s and Back Office Portal Licences, the Supplier shall invoice it in accordance with clause 5 and the Customer shall amend its direct debit accordingly.
7. CONFIDENTIALITY AND PUBLICITY
7.1 Each party shall, during the term of this Licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
7.2 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8. SUPPLIER’S WARRANTIES
8.1 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
8.2 The Customer 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 Customer.
8.3 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in clause 8.2:
9.1.1 the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
9.1.1.1 special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
9.1.1.2 loss of profits;
9.1.1.3 loss of anticipated savings;
9.1.1.4 loss of business opportunity;
9.1.1.5 loss of goodwill;
9.1.1.6 loss or corruption of data,
provided that this clause 8.1.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 8.1.2 or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 8.1.1;
9.1.2 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee payable in the preceding 12 months (or where the Licence has continued for a period less than 12 months, then the actual amount of the Fees paid by the Customer); and
9.1.3 the Customer agrees that, in entering into this Licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Licence or (if it did rely on any representations, whether written or oral, not expressly set out in this Licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this Licence.
9.2 The exclusions in clause 7.4 and clause 8.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
9.2.1 death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
9.2.2 fraud or fraudulent misrepresentation;
9.2.3 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
9.2.4 any other liability which may not be excluded by law.
9.3 All dates supplied by the Supplier for the delivery of the Software or the provision of Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.4 All references to “the Supplier” in this clause 8 shall, for the purposes of this clause and clause 16 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 16.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence.
10.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Licence infringes the UK Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 9.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with this Licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
10.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 9.2 are conditional on the Customer:
10.3.1 as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
10.3.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
10.3.3 giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
10.3.4 subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
10.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
10.4.1 procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this Licence;
10.4.2 modify the Software so that it ceases to be infringing;
10.4.3 replace the Software with non-infringing software; or
10.4.4 terminate this Licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 7.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Licence been references to the date on which such modification or replacement was made.
10.5 This clause 9 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8.1.
11. DURATION AND TERMINATION
11.1 [This Licence shall, unless otherwise terminated as provided in this clause 14, commence on the Acceptance Date and shall continue for the Initial Term and, thereafter, this Licence shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
11.1.1 either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
11.1.2 otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.
11.2 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:
11.2.1 the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
11.2.2 the Customer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
11.2.3 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
11.2.4 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
11.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;
11.2.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
11.2.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Customer;
11.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
11.2.10 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.3 to clause 10.1.9 (inclusive);
11.2.11 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
11.2.12 there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
11.3 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
11.4 On termination for any reason:
11.4.1 all rights granted to the Customer under this Licence shall cease;
11.4.2 the Customer shall cease all activities authorised by this Licence;
11.4.3 the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Licence; and
11.4.4 the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
11.5 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 shall remain in full force and effect.
12. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13. REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. ENTIRE AGREEMENT
14.1 This Licence, the Purchase Order, the Privacy Policy and any other documents otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2 Each party acknowledges that, in entering into this Licence and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Licence or not) (“Representation”) other than as expressly set out in this Licence or those documents.
14.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Licence.
14.4 Nothing in this clause shall limit or exclude any liability for fraud.
15. VARIATION
The Supplier will notify the Customer on a variation of this Licence and will be deemed to be accepted by the Customer when they next log on to use the Software.
16. SEVERANCE
16.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
16.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. THIRD-PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
18. NO PARTNERSHIP OR AGENCY
18.1 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, or authorise any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. FORCE MAJEURE
The Supplier shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 60 days, the Customer may terminate this agreement by giving 30 days’ written notice to the Supplier.
20. NOTICES
20.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
20.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
20.1.2 sent by fax to its main fax number.
20.2 Any notice shall be deemed to have been received:
20.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
20.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
20.2.3 if sent by fax, at 9.00 am on the next Business Day after transmission.
20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
21. GOVERNING LAW AND JURISDICTION
21.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).