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Terms and Conditions - 2023 v1

The following Terms and Conditions apply to the Software and Professional Services Schedule (“Schedule”).

1 Terms & Conditions of Licence

Subject to the terms and conditions defined in this section 1, Original Software hereby grants to Client a non-exclusive, non-transferable, non-assignable limited licence (“Licence”) to use the specified number of copies of the software described in the Schedule with related documentation and materials (“Software”) for the period defined in the Schedule and within the Permitted Territories defined in the Schedule.

1.1 General

a. Client hereby acknowledges and agrees that Original Software retain all rights, title, and interest in and to the Software, and any and all modifications, enhancements, updates, versions, releases, configurations, and derivative works thereof, whether written, printed, electronic, or in source code or any other format, and any patent, copyright, trade secret, trademark, service mark, or other intellectual property rights in any of the foregoing.

b. This Agreement shall not be construed to in any way grant to the Client any right, title or interest in the Software or any patent, copyright, trade secret, trademark, service mark, or other intellectual property rights in any of the foregoing, other than the right to use the Software in object code version as supplied by Original Software.

c. Nothing contained herein shall be construed to grant the Client the right to use or obtain a copy of the source code version of the Software.

d. Client is expressly prohibited from de-compiling or otherwise reverse engineering the Software or creating derivative works based upon the Software.

e. If the Client commits a material breach of this Agreement and does not remedy that breach within thirty (30) days of notification by Original Software to Client of such breach, the Licence may be immediately terminated by Original Software.

f. Upon termination of this Licence due to Client’s uncured breach of this Agreement, Client shall immediately cease use of and delete any machine-readable form of the Software in Client’s possession and return any and all related materials and or documentation to Original Software or Client shall destroy such materials and/or documentation, at Original Software’s option.

g. The Agreement may be cancelled at any time by the Client but if so cancelled all outstanding charges payable under this Agreement shall become immediately due for payment. If this Agreement includes products licenced for a fixed term, then all fees for the remainder of the term will become immediately payable.

1.2 Limited Warranties

a. Original Software represents and warrants that it has the right to grant this License for the Software to the Client, and neither the Software nor the License violates, infringes or encroaches upon any third party’s contractual or proprietary rights including, without limitation, patent, copyright, trademark, rights of privacy or publicity, or trade secrets (“Third Party Infringement”); provided, however, that Original Software shall have no liability for any infringement claim if: (a) Client is not using the latest revision of the Software provided by Original Software to Client (“Current Release”), to the extent such claimed infringement would have been avoided by use of the Current Release, (b) Client is using a form of the Software that has been modified from the Software provided by Original Software, whether such modifications have been approved by Original Software or not, to the extent such claimed infringement would have been avoided by use of an unmodified form of the Current Release, or (c) the Software has been combined, operated, or used with products or data not supplied by Original Software, to the extent such claimed infringement would have been avoided by using the Software without such products or data.

b. Original Software further represents and warrants that, to Original Software’s knowledge, there are no claims, demands or proceedings that have been instituted, or are pending or threatened, by any person against Original Software or, to Original Software’s knowledge, any Client of Original Software alleging any matter contrary to the foregoing. In the event of any claimed Third Party Infringement, Original Software shall defend or settle, at its sole cost and expense, any and all suits, claims, demands and/or causes of action, for or arising from any infringement or alleged infringement of any patent or copyright or any trade secret or other proprietary intellectual property or other right of any third party arising out of the use by Client of any materials, software, combination or process comprising all or part of the Software licensed by the Original Software to Client pursuant to this Agreement and shall indemnify and save Client harmless from and against all claims, damages, liabilities, losses and/or expenses, including reasonable attorneys’ fees, on account of such infringement; provided that the Original Software is notified promptly in writing of any such claim or of the commencement of any such suit or proceeding and is given reasonable assistance for defence or settlement of such action.

c. Original Software warrants that the Software will perform substantially in accordance with the published user  documentation that forms part of the Software. Original Software’s entire liability and Client’s exclusive remedy relative to the failure of the Software to fulfil this warranty shall be for Original Software, at its option, to either: a) replace the Software that does not meet the limited warranty described above; b) use commercially reasonable efforts to correct any errors in the Software which prevent the Software from substantially performing as described in such user documentation; or c) return all monies paid to the Client for future use of the Software from the date of notification and terminate this License in the event that the remedies described in a) and b) are not achieved in a reasonable timescale.

d. The above warranties are null and void if: a) the Client causes or permits modification or change to the Software, or b) failure of the Software has resulted from accident, abuse, misapplication, operation by unqualified personnel or failure to comply with the user documentation. Original Software does not warrant that the functions contained within the Software will meet Client’s requirements or that operation of the Software will be uninterrupted or error free or that all defects will be corrected.

1.3 Disclaimer

a. EXCEPT AS STATED ABOVE, ORIGINAL SOFTWARE MAKES NO OTHER WARRANTIES REGARDING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY AND ANY OTHER WARRANTY EXPRESS, OR IMPLIED. FURTHER, ORIGINAL SOFTWARE PROVIDES NO INDEMNITY AGAINST INFRINGEMENT HEREUNDER, AND EXPRESSLY DISCLAIMS ANY SUCH INDEMNITY.

1.4 Support

a. During the term of this Agreement Original Software will provide Support Services with respect to the Software. As part of the Support Services, Original Software shall provide remote help desk support to Client with respect to the Software and shall use reasonable commercial efforts to correct any reproducible material errors or defects in the Software identified by Client that are preventing the Software from performing in substantial conformance with the user documentation.

b. The Support Services shall also include the provision of a) enhanced releases of the Software which it may from time to time, at its sole discretion, develop and issue to its clients of the Software and (b) temporary validation codes for up to two (2) weeks per annum for disaster recovery testing.

c. Except at the sole discretion of Original Software the above Support Services shall be off-site and delivered via telephone, conference calls and e-mail.

1.5 Limitation of Liability

a. Except with respect to any breach of Clause 1.1.d or Section 3 hereof, neither party shall at any time be liable to the other or its affiliates for any consequential damages, lost profits or indirect losses of any kind in any way related to this Agreement.

b. IN NO EVENT SHALL ORIGINAL SOFTWARE’S CUMULATIVE LIABILITY TO CLIENT FOR ANY AND ALL CLAIMS REGARDING THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING UNDER CONTRACT, TORT, WARRANTY, OR OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT TO ORIGINAL SOFTWARE IN RESPECT OF THE TWELVE MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION FIRST OCCURRED.

1.6 Activation & Renewal

a. Once payment has been received, Original Software will issue Software activation codes which will expire at the end of the period covered by the payment.

b. Original Software will notify the Client of the approaching end of the subscription term at least forty-five (45) days in advance of the end with a quotation for the renewal. All subscriptions will automatically renew for periods equal to the initial subscription term unless Original Software receive notification of termination at least seven (7) days in advance of the expiry of the current subscription.

c. The renewal will be based on the price list prevailing at the time of the renewal unless otherwise agreed.

2 Professional Services Terms & Conditions

Original Software will perform the services defined in the Professional Services Schedule. Subject to the terms and condition defined in this Section 2.

2.1 Engagement

a. The Professional Services comprise a) standard services such as but not limited to faststart programs, product training and initial product implementation (“Standard Services”) or b) other services (“Custom Services”) that must be specifically described in the Schedule.

b. The description of Custom Services will include as a minimum: a description of the work to be performed, the minimum engagement period, the normal working hours, the normal location for the Custom Services, and the Client employee responsible for the engagement.

c. The Client will provide access to systems and facilities as is necessary for Original Software’s project team to perform their duties, unavailability of which will not prevent billing continuing.

2.2 Relationship of Parties

a. The relationship of Original Software to Client is that of independent companies and nothing set forth herein shall be deemed or construed to render the representatives of either party as employee of the other party.

2.3 Services

a. Estimates of elapsed time and chargeable hours shall be mutually agreed by the parties. Original Software cannot exceed these estimates without additional authorisation.

b. Agreed travel and subsistence costs will be paid by Client to Original Software (“Expenses”).

c. The Services will be performed by direct employees of Original Software and/or subcontracted resources.

d. Original Software’s team members will perform diligently to industry best practices and comply with Client’s reasonable working practices when required.

e. For Custom Services the size and make-up of the Original Software team may vary from time to time by mutual agreement in writing.

2.4 Term and Termination

a. This Agreement for Professional Services shall commence on the Agreement Date and shall continue in full force until terminated.

b. This Agreement for Professional Services may be terminated by the parties at any time, as follows:

i. Subject to any minimum engagement period defined in the Project Schedule, thereafter the Client can terminate upon 30 days written notice to Original Software. Upon receipt of notice Original Software shall immediately cease all work and Services, except as may be specifically approved in writing.

ii. By the Original Software if Client breaches any material term or provision of this agreement and such breach is not cured within thirty (30) days after the Original Software gives Client notice complaining of such breach.

c. In the event of termination Original Software shall return to Client any and all documents, materials, work product and all copies made thereof, which were obtained by Original Software from Client, or which were developed by Original Software as a result of the Services performed hereunder.

d. In the event Client terminates this Agreement for Professional Services, Client’s obligation to Original Software shall be to pay Original Software for the Professional Services rendered in accordance with this agreement and completed to the date of termination.

2.5 Compensation

a. Standard Services are to be pre-paid by the Client. Original Software will deliver these Professional Services within one year of the date of this Agreement, but if this is not possible for reasons which are the responsibility of Original Software, any un-delivered Standard Services will be refunded or allowed against future Standard Services. If all or part of the Standard Services have not been delivered within one year because of Client’s delay or error, the undelivered Standard Services will be cancelled without refund.

b. Custom Services and Expense will be invoiced monthly in arrears.

c. The Fees in the Project Schedule may be increased annually from the date of commencement and if being increased Original Software will notify the Client of the proposed increase at least 60 days in advance.

d. When Custom Services are delivered the Client acknowledges that the Original Software staff are entitled to take their annual holiday entitlement. The timing of such holiday absences shall be agreed in advance between the parties.

2.6 Intellectual Property and other Rights

a. Client acknowledges that Original Software owns the Intellectual Property in the Software which Original Software provides to the Client.

b. Subject to 2.6.a, any and all creations, inventions, discoveries, improvements, works of authorship, know-how, technical information, computer programs and other materials, developed, conceived or made resulting from the Services (“Intellectual Property”) shall be deemed to be work made for hire and shall become the sole and exclusive property of Client. Client shall have full ownership of, and the right to use, such property for all purposes.

c. Original Software shall disclose promptly to Client all Intellectual Property and shall assign such Intellectual Property to Client and shall sign any and all applications, assignments or other instruments that Client may deem necessary in order to enable it to apply for, prosecute, obtain and/or evidence patents and other rights for such Intellectual Property or in order to assign and transfer to Client the entire right, title and interest in and to all such Intellectual Property and in and to any patents that may issue thereon. At the time of such disclosure, Original Software shall advise Client of (i) any violations of the intellectual property rights of any third party relating to the Intellectual Property, and (ii) all portions of the Intellectual Property copied or derived from the intellectual property of any third party.

d. Client shall have the right to use, publish, translate, reproduce, deliver, and/or dispose of all Intellectual Property and to authorize others to do so, for any and all purposes. Original Software shall grant all licences necessary or appropriate in furtherance of this Agreement.

2.7 Force Majeure

a. Neither party shall be liable for any delays or failures attributable to its being affected by an Event of Force Majeure, but the party so affected shall use reasonable endeavours to resume performance as quickly as possible and shall promptly give the other party full particulars of the failure or delay and consult with the other party concerning the failure or delay from time to time as appropriate.

b. If any such delay or failure on the part of Original Software continues for a period of three (3) months, or for sixty (60) days in any one hundred and twenty (120) day period, the Client shall be entitled to terminate this Agreement immediately on giving written notice to Original Software.

3 Non-disclosure Agreement

Each party may sign a mutual Non-Disclosure Agreement before the date of this Agreement. if no such Agreement exists both parties will abide by the clauses in this Section.

3.1 Confidentiality

a. The parties may, from time to time, disclose information to each other, including without limitation, inventions, know-how, ideas, trade secrets, patent, trademark and copyright applications, technical and business plans, proposals, specifications, drawings, data, source and/or object code, pricing, costs, procedures, reports, proposed products, processes, the existence and substance of any business discussions, negotiations or agreements between the parties, and business systems, information which the disclosing party has received from a third party under a duty of confidentiality and which the disclosing party identifies to the receiving party as confidential or proprietary techniques, services, or other technical or business information in written or tangible form that has been marked as being confidential by the disclosing party, or is known or reasonably should be known by the receiving party to be confidential, including personal data as defined by GDPR (“Confidential Information”). The terms and conditions of this Agreement shall also be considered the Confidential Information of each party, but the parties may disclose the existence of this Agreement.

b. Confidential Information shall remain the sole and exclusive property of the disclosing party or the third party that provided such information to the disclosing party. Neither party shall use, disclose, disseminate, or copy the Confidential Information of the other party, except as expressly provided in this Agreement. The parties shall only allow their employees, independent contractors, consultants, and vendors access to the other party’s Confidential Information upon such employees, independent contractors, consultants and vendors being made aware of, and agreeing to be bound by, confidentiality obligations that are substantially as protective of each party as the terms of this Agreement. Subject to the terms set forth herein, each party shall maintain the confidentiality of the other party’s Confidential Information with the same degree of protection and care it uses to protect its own Confidential Information of a similar nature but shall in no event use less than reasonable care. The obligations shall continue: (i) with respect to Confidential Information that constitutes a trade secret, for so long as such trade secret status is maintained under applicable law; and (ii) with respect to Confidential Information that does not constitute a trade secret under applicable law, for a period of 5 years after the expiration or termination of this Agreement, or the longest period of time permitted under applicable law, if less than 5 years.

c. The receiving party shall have no obligation to preserve the confidentiality of Confidential Information received from the disclosing party if it can demonstrate that the Confidential Information: (i) was previously known to the receiving party free of any obligation to keep it confidential and free of any restriction on use and disclosure; (ii) was received from a third party without restrictions on use and disclosure and without breach of any agreement with the disclosing party; (iii) was or has become publicly available through an authorised disclosure by the disclosing party, without any restrictions on use and disclosure; or (iv) was independently developed by or for the receiving party by persons who had not been exposed to such information either directly or indirectly, and such independent development can be reasonably proven.

d. The parties acknowledge that the other’s Confidential Information includes commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and investment of considerable amounts of time and money. Therefore, the parties acknowledge that any use or threatened use of the other’s Confidential Information in a manner inconsistent with this Agreement or any other misuse of the Confidential Information will cause immediate irreparable harm to the disclosing party for which there is no adequate remedy of law. Accordingly, the parties agree that the disclosing party shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach by the receiving party. Nothing contained herein shall limit the disclosing party’s right to any remedies of law including the recovery of damages from the other parties from breach of this Agreement.

e. Notwithstanding the foregoing Sections, if any party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, that party will give the disclosing party prompt written notice sufficient to allow the disclosing party to seek a protective order or other appropriate remedy. The parties will only disclose such Confidential Information as is legally required and will use their reasonable best efforts to obtain confidential treatment for any information that is so disclosed.

f. Upon termination of this Agreement, each party that has received Confidential Information from another party shall, at the option of the disclosing party, either destroy or return to the disclosing party all tangible materials embodying Confidential Information received from such disclosing party at the disclosing party’s option and shall inform the disclosing party in writing within 15 days that it has done so.

4 General

4.1 Payment, Taxes and Charges

a. All prices, fees or any other costs quoted are exclusive of sales taxes or any other applicable taxes at rates that may from time to time be in force. All taxes that may be applicable to the Licence or services provided hereunder and other charges, including but not exclusively, charges for shipping and handling, customs duties, and insurance cover required by the Client (but excluding tax or other levy on property or income of Original Software) are the responsibility of the Client.

b. Save where there is a bona fide dispute in respect of any invoice or any item(s) therein, all payments shall become due within thirty (30) days of the invoice issue date. Where a bona fide dispute arises, the parties shall co-operate in attempting to remedy such dispute within a reasonable time.

c. All payments are due and payable as set forth in this section. If Client fails to make any payments on undisputed items by the due date, Client may be subject to a late payment interest charge calculated at one and one-half percent (1.5%) per month.

4.2 Miscellaneous

a. This Agreement constitutes the entire Agreement of the Parties with respect to the subject matter hereof and supersedes all previous agreements between the Parties as well as all proposals, whether oral or written, and all prior negotiations, conversations or discussions between the parties related to this agreement.

b. If any of the terms of this Agreement are in conflict with any rule of law or are otherwise unenforceable, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement, and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from the remainder of this Agreement.

c. The terms and conditions as defined in this Agreement can be overridden in the Special Notes section of the Software and Professional Services Schedule.

d. There will be no solicitation of staff of one party by the other party for the duration of this Agreement and for six (6) months thereafter.

e. This Agreement may be executed in two counterparts, each of which when so executed and delivered shall be an original, but such counterparts shall constitute one and the same instrument.

f. A Client purchase order reference relative to this Agreement may be advised to Original Software to aid Client purchasing administration, but its terms and conditions shall not vary or form part of this Agreement between Original Software and the Client for the supply of the Software or any other product and or Professional Services.

g. The expiration or termination of this Agreement shall not affect the obligations of the Original Software under Sections 2.6 of this Agreement, which shall be deemed to be continuing obligations Original Software. Furthermore, any warranties, whether express or implied, and any representations of Original Software contained herein or arising here from, shall survive the expiration or termination of this Agreement.

h. Where the address of the Client as specified on the Software and Professional Services Schedule is located within North America, Central America or South America this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois USA. For all other locations this Agreement shall be governed by and construed in accordance with the laws of England & Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England & Wales.

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