This Software Licence agreement is made between:
Codegate Limited, a company incorporated in England and Wales (registration number 02538344) having its registered office at 39 Chapel Road, West End, Southampton, SO30 3FG (the "Licensor"); and the individual and/or organisation using the VTRACE software (the "Licensee").
This Software Licence is made by Licensor to the Licensee as an essential element of the services to be provided by Licensor as defined in the system specification and any associated documents and agreement.
Licensee and Licensor agree that this Software Licence is deemed to be part of, and subject to, the terms of the Agreement applicable to both parties.
1.1 Licensor hereby grants to Licensee a worldwide, non-exclusive, non-transferable license to the software detailed in Schedule 1. “Software” shall mean executable object code of software programs and the patches, scripts, modifications, enhancements, designs, concepts or other materials that constitute the software programs.
1.2 The licence is limited to the period set out in Schedule 1 (the “ Licence Period ”).
1.3 Except as expressly set forth in this paragraph, Licensor shall at all times own all intellectual property rights in the software. Any and all licenses, product warranties or service contracts provided by third parties in connection with any software, hardware or other software or services provided in the system shall be delivered to Licensee for the sole benefit of Licensee.
1.4 Licensee may supply to Licensor or allow the Licensor to use certain proprietary information, including service marks, logos, graphics, software, documents, and business information and plans that have been authored or pre-owned by Licensee. All such intellectual property shall remain the exclusive property of Licensee and shall not be used by Licensor for any purposes other than those associated with delivery of the system.
2.1 Licensee may make use of the Software as part of its day-to-day activities including by way of copying, evaluation, adapting, modifying, engineering, translating, assembling, and testing. All copies and distribution of the software shall remain within the direct control of Licensee and its representatives.
2.2 Licensee may not make modifications to the source code version of the software.
2.3 All express or implied warranties relating to the software shall be deemed null and void in case of any modification to the software made by any party other than Licensor.
SECTION 3 WARRANTIES AND REPRESENTATIONS
Licensor represents and warrants to Licensee that:
3.1 Licensor represents and warrants to Licensee that:
3.1.1 it has all necessary rights and authority to execute and deliver this Software License and perform its obligations hereunder and to grant the rights granted under this Software Licence to Licensee; and
3.1.2 the goods and services provided by contractor under this Software License, including the software and all intellectual property provided hereunder, are original to Licensor or its subcontractors or partners.
3.2 Licensor represents and warrants (on and ongoing basis throughout License Period) that:
3.2.1 the Software is fit for the purpose for which the Licensee has expressly made known to the Licensor, prior to the commencement of the Licence Period, the purpose for which the Software is to be used;
3.2.2 the Software conforms as to the quality, design, functionality and description described in the documentation agreed between the Licensor and Licensee;
3.2.3 best practice has been followed in the production of the Software and it is tested to be free from defects in workmanship (including unreasonable coding errors and/or viruses);
3.2.4 it is suitably qualified and experienced to provide support and maintenance; and
3.2.5 it has only included open source software within the Software to the extent that it has:
i obtained the consent of Licensee to use the open source software;
3.2.6 the software will not infringe or otherwise violate the rights of any third party, or violate any applicable law, rule or regulation.
3.3 Licensor further represents and warrants that the executable object code of software will perform substantially in accordance with the specifications and this Agreement.
3.4 Except as expressly stated in this Agreement, there is no warranty, express or implied, including, but not limited to, the implied warranties of fitness for a particular purpose, of merchantability.
4.1 Licensor hereby indemnifies and shall defend and hold harmless Licensee, its parent companies and its and their subsidiaries, affiliates, officers, directors, employees, agents and subcontractors from and against all liability, damages, loss, cost or expense, including but not limited to reasonable legal fees and expenses, arising out of or in connection with any breach or alleged breach of the Agreement or any third party claims that the software here provided by Licensor infringes or otherwise violates any rights of any such third party.
4.2 Licensee hereby indemnifies and shall defend and hold harmless Licensor, its and their subsidiaries, affiliates, officers, directors, employees, agents and subcontractors from and against all liability, damages, loss, cost or expense, including but not limited to reasonable legal fees and expenses, arising out of or in connection with any third party claims that Licensee’s use of the software in contravention of the grant of rights infringes or otherwise violates any rights of any such third party.
4.3 Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such a claim and shall give the indemnitor reasonable opportunity to defend and to settle the claim at its own expense and with counsel of its own selection. The indemnitee shall cooperate with the indemnitor, shall at all times have the right full to participate in such a defence at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business.
3 This licence will automatically terminate upon the expiry date set out in Schedule 1.
3.1.1 a non-Terminating Party is in material breach of this Agreement, and such breach is either not capable of remedy or it is capable of remedy but has not been remedied with seven (7) working days of the non-Terminating Party being notified of such breach; or
3.1.2 the non-Terminating Party has a receiver, administrative receiver, liquidator or administrator appointed over the whole, or any part, of its undertaking or assets, or an order is made or a resolution passed for winding-up or administering of the non-Terminating Party unless in each case such order or resolution is part of a scheme of solvent reconstruction or amalgamation, or if the non-Terminating Party ceases or threatens to cease carrying on business.
SECTION 6 LIABILITY
i for death or personal injury caused by its negligence or the negligence of its employees or agents;
ii under any express indemnities in this Agreement;
iii for fraud, fraudulent misrepresentation and/or any liability which cannot lawfully be excluded or limited; or
iv for payment of Fees,
is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
6.2 Subject to Clause 6.1, other than as specifically set out in this Agreement, neither the Licensee or Licensor shall be liable (whether for breach of contract, negligence, misrepresentation or for any other reason) for any loss which is:
i indirect;
ii consequential; and/or
iii special.
6.3 Subject to Clause 6.1, the maximum liability of both the Licensee and Licensor under this Agreement (and whether the liability arises because of breach of contract, negligence, misrepresentation or for any other reason) shall be limited as follows;
6.4 in relation to each claim, to an amount equal to 110% of the fees paid and payable to the Licensor during the twelve (12) month period prior to the month in which the claim is made; and
6.5 in the aggregate, to five hundred thousand pounds (£500,000) (so that under no circumstances will either the Licensee’s or Licensor’s total aggregate liability under or in relation to this Agreement exceed that amount).
6.6 The Licensor shall take out and maintain, throughout the Licence Period, and for at least twelve (12) months thereafter, professional indemnity and employer’s liability insurance with a reputable UK-based insurance company to a limit of not less than five hundred thousand pounds (£500,000) per claim. On request from Licensee, the Licensor shall produce to Licensee written confirmation from the relevant insurance company that the relevant insurance is in force.
SECTION 7 SUPPORT AND MAINTENANCE
7.1 As may be agreed by the Licensee and Licensor or to abide with best industry practice, in providing any support and maintenance to the Licensee, the Licensor shall use its best endeavours to ensure that all personnel engaged by it to provide such support and maintenance shall be suitably qualified and experienced and shall possess all necessary skills, qualifications and experience to adequately perform any support and maintenance. The Licensor is solely responsible for arranging payments to and shall remain liable for all acts and/or omissions of all personnel it utilises to provide any support and maintenance (“Service Personnel”).
7.2 The Licensor warrants and undertakes, and shall use its best endeavours to procure that all Service Personnel warrant and undertake, that they shall comply with all reasonable directions from time to time given to them by the Licensee in connection with the provision of any support and maintenance, including (for the avoidance of doubt) all instructions given to them by the Licensee’s other senior personnel as Licensee may specify from time to time.
7.3 The Licensor shall, and shall use its best endeavours to procure that the Service Personnel shall, keep the Licensee regularly informed and shall give to Licensee such information regarding the provision of any support and maintenance as the Licensee may reasonably require. Where both the frequency of support and level of information required is to go beyond a reasonable level, the Licensor shall be entitled to provide the Licensee with a quote for such services to be supplied.
7.4 The Licensor shall use its best endeavours to ensure and be responsible for the provision of any support and maintenance to the reasonable satisfaction of the Licensee.
7.5 The Licensor shall not and shall use its best endeavours to ensure that no Service Personnel shall, without the prior written consent of Licensee, undertake any engagement or activity which is liable to detract from the Licensor’s ability to render any reasonable support and maintenance hereunder.
7.6 The Licensor undertakes to Licensee that the Licensor shall:
7.6.1 be responsible for and indemnify the Licensor against, all PAYE deductions for tax and national insurance contributions from the remuneration it pays to all personnel engaged or employed by it in connection with the performance of any support and maintenance.
7.6.2 use it best endeavours to ensure that a sufficient number of personnel possessing the requisite skills and experience work on any support and maintenance so as to comply with its obligations.
7.6.3 use it best endeavours to ensure that all Service Personnel perform the support and maintenance with due diligence and in a safe and competent manner in accordance with all applicable laws;
7.6.4 use it best endeavours to ensure that all Service Personnel shall, to the extent applicable, acquaint themselves with and comply with any working practices rules or procedures applicable at any location where they are performing any support and maintenance;
7.6.5 confirm by written notice, upon discovery of any problem that will materially delay the provision of any support and maintenance;
7.6.6 use its best endeavours to ensure that all Service Personnel shall provide the full benefit of their knowledge, expertise, technical skill and ingenuity in connection with any support and maintenance and devote their full time, attention and abilities at such times as may be necessary for the proper performance of any support and maintenance;
7.6.7 use its best endeavours to ensure that all Service Personnel shall make themselves available to report on the progress of any support and maintenance at such times and at such locations as may be mutually agreed between the Licensor and Licensee from time to time; and
7.6.8 regularly update Licensee on the progress of any support and maintenance as requested by the Licensor from time-to-time.
7.7 The Licensee will provide reasonable access to and reasonable co-operation by the Licensee’s staff and such information which the Licensor shall reasonably request in order to provide any support and maintenance. Where the access to and co-operation by the Licensee’s staff and the level of information required is to go beyond a reasonable level, the Licensor shall be entitled to provide the Licensee with a quote for such services to be supplied. Where this is deemed/agreed chargeable MGP will provide an Order at the agreed cost.
6.1 The Licensor shall not, and shall use its best endeavours to ensure that the Service Personnel shall not, disclose to any third party the existence of this Agreement and/or its contents without the prior written approval of Licensee (to be granted or withheld at Licensor’s sole and unfettered discretion).
6.2 The Licensor is, and shall use its best endeavours to ensure that the Service Personnel are, aware that in the course of its performance of its obligations under this Agreement it and they may come into contact with information in respect of the business, financing, dealings, transactions, technical know-how and affairs of the Licensee and of clients of the Licensee all of which information is or may be confidential.
6.3.1 any information concerning the business or status of Licensee or any company, subsidiary or associated company of Licensee (“Group”); and
6.3.2 any information concerning the business or status of any person having dealings with Licensee, which comes to its and/or his knowledge during the course of or in connection with the performance of its obligations under this Agreement.
6.4 The restrictions contained in Clause 8.3 shall cease to apply to any information or knowledge which:
6.4.1 may come into the public domain otherwise than by breach of the Licensor’s and/or the Service Personnel’s obligations set out in Clause 8.3;
6.4.2 is disclosed to the Licensor (as appropriate) by a third party who has not received it either directly or indirectly from the Licensee or a client of the Licensee who was free to disclose the same;
6.4.3 must be disclosed in accordance with any applicable law, to the extent of such required disclosure.
SECTION 9 MISCELLANEOUS
9.1 The Licensor shall not assign this Agreement (or any part thereof) to any person; nor shall the Licensor sub-contract or delegate any of its responsibilities under this Agreement to any third party without the prior written consent of an authorised representative of the Licensee (such consent not to be unreasonably withheld).
9.2 The failure of either the Licensor or Licensee at any time to enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provisions or in any way to affect the validity of this Agreement or any provisions hereof or the right of that party to thereafter enforce each and every provision of this Agreement.
9.3 No waiver of any breach of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party against which enforcement of such waiver is sought and no waiver of any such breach shall be construed or deemed to be a waiver of any other or subsequent breach.
9.4 All of the provisions of this Agreement are intended to be distinct and severable. If any provision of this Agreement is or is declared to be invalid or unenforceable in any jurisdiction it shall be ineffective in such jurisdiction only to the extent of such invalidity or unenforceability. Such invalidity or unenforceability shall not affect either the balance of such provision to the extent it is not invalid or unenforceable or the remaining provisions hereof or render invalid or unenforceable such provision in any other jurisdiction.
9.5 This Agreement shall be binding on and inure to the benefit of the Parties and their respective heirs, representatives, successors and assigns.
9.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
9.7 All notices and consents relating to this Agreement must be in writing. The terms of this Agreement shall not be amended except by a specific agreement in writing duly signed by the authorised signatories of both the Licensor and the Licensee.
9.8 This Agreement shall be governed by and construed in accordance with English law. All disputes arising out of, or in connection with, this Agreement shall be subject to the exclusive jurisdiction of the courts of England.
9.9 This Agreement supersedes all prior representations arrangements and understandings between the Licensor and Licensee relating to the subject matter hereof and except as expressly provided herein constitutes the complete and exclusive statement of the terms and conditions of the agreement between the parties. Nothing in this Agreement shall limit or exclude any liability for fraud. In entering into this Agreement neither party has relied on any representations not expressly set out herein.
9.10 Neither the Licensor or Licensee shall be liable to the other for any breach of this Agreement (or any delay in performing its obligations hereunder) which arises because of any circumstances beyond that party’s reasonable control.
9.11 In this Agreement, save as expressly stated to the contrary:
i reference to a person includes a legal person (such as a limited company) as well as a natural person;
ii reference to this “Agreement” includes reference to the Schedules and other documents attached to or incorporated by reference into them (as amended or added to from time to time) and shall also include reference to it after it has been amended, added to or replaced by a new agreement;
iii reference to "including" shall be treated as being by way of example only and shall not limit the general applicability of any preceding words;
iv reference to any “laws” and “legislation” shall be to lose laws/that legislation as amended, extended or re-enacted from time to time and (in the case of legislation, to any subordinate provision made under that legislation; and
v references to Clause numbers or schedules shall be to those in this Agreement.