IMPORTANT NOTICE:
YOU MUST READ THIS LICENCE BEFORE INSTALLING THE
SOFTWARE:
You agree in your capacity
as an individual, that you are an authorised agent, for the purposes of
installing and activating this software, for the organisation on whose computer
this software is being installed (or the organisation for whose end benefit the
Software is being made available for use by the Hoster where this Software is
being installed in a hosted environment). You also confirm that the respective organisation
has paid the Software Fees for this Software (the organisation being referred
to as the “Licensee” (with such organisation also being identified as
the respective licensee in the Dynistics Proposal); and the terms contained
within this document being referred to as the “Licence”).
If the Software is being
installed and/or activated by you as a third party which is designated by the
Licensor as an authorised reseller of its Software (an “Authorised Reseller”)
or the Licensor’s authorised hosting services provider (the “Hoster”)), on
the Licensee’s behalf, then the Authorised Reseller or Hoster (as applicable) and
the Licensee each confirms that the Licensee has appointed the Authorised
Reseller or Hoster (as applicable) as its agent to confirm acceptance of this Agreement
on the Licensee’s behalf, and the Licensee hereby agrees to be bound by the
Agreement.
The Licensee acknowledges
that the Agreement is a contract between the Licensee and us (Dynistics
Limited, registered in England and Wales with company number 03968449 whose
registered office is at Blythe Valley Innovation Centre, Blythe Valley Park,
Shirley, Solihull, West Midlands B90, 8AJ, United Kingdom (the “Licensor”;
expressions such as “we”, “our” and “us” therefore refer to the
Licensor)), governing the use of the Software, Support Services and the
Additional Services.
The Software Materials are
licensed to the Licensee pursuant to the Agreement (“Agreement” means
the Licence together with the respective Dynistics Proposal). The Software
Materials are, and remain, our property and the property of our third party
licensors.
Note: This paragraph applies where the Licensee (or the
Authorised Reseller or Hoster on the Licensee’s behalf), is attempting to
install Software Materials which have been made available to the Licensee for
installation from CD or DVD media: The Licensee must communicate any
refusal of the Licensee to accept the Licence, to the Supplier (the “Supplier”
means the Licensor, or if the Licensee is seeking access to the Software
Materials through an Authorised Reseller, then it means the Authorised
Reseller) within 7 days of the Supplier providing the Licensee with a CD or DVD
containing the Software, and the Licensee must within this timeframe also
return to the Supplier, at the Licensee’s cost, all information, software,
documentation and materials which the Supplier has made available to the
Licensee. If the Licensee complies with this 7 day time period, and provided
that the Licensee has neither installed, activated nor used the respective
Software, the Licensee may request a full refund of the payment which the
Licensee has made to the Supplier in relation to the Software which is not
being installed (for the avoidance of doubt, the Licensee agrees that it must
seek such refund directly from the Authorised Reseller and not the Licensor, if
the payment has been made by the Licensee to the Authorised Reseller rather
than to the Licensor). If the Licensee fails to comply with this timescale, the
Licensee will have been deemed to have accepted the provisions contained within
the Agreement, and the Licensee agrees to comply with them.
Acceptance
By in any way installing, activating, copying or otherwise
using the Software Materials, or any part of them, the Licensee agrees to be
bound by the terms of the Agreement. If the Licensee does not agree to the
terms of this Licence, then the Licensor is unwilling to license the Software
Materials to the Licensee, and you must discontinue the installation of the
Software Materials now, by selecting the “Do not Accept” option below, as you
may not then install, activate, copy or in any way use the Software Materials,
or any part of them (if the Licensee clicks on the “Do not Accept” option, and
provided that the Licensee has neither installed, activated nor used the
respective Software Materials, the Licensee may request within 2 days of being
provided with the ability to install the Software, a full refund of the payment
which the Licensee has made to the Supplier in relation to the Software
Materials which are not being installed (for the avoidance of doubt, the
Licensee agrees that it must seek such refund directly from the Authorised
Reseller and not the Licensor, if the payment has been made by the Licensee to
the Authorised Reseller rather than to the Licensor)).
Interpretation
& Definitions
·
“Additional Services” has
the meaning attributed to it in Clause 2.2.
·
“Additional Services Fees”
means the amount expressed in the respective Dynistics Proposal as the ‘Additional
Services Fees’.
·
“Agreement”, “Authorised
Reseller”, “Hoster”, “Licence”, “Licensee”, “Licensor”,
“Supplier” have the respective meanings attributed to those terms above.
·
“Clients” means the
Licensee’s end user customers.
·
“Defect” means a
non-compliance by the Software with its Documentation.
·
“Documentation” means the
Software’s user documentation.
·
“Dynistics Proposal” has
the meaning attributed to it in Clause 1.2.
·
“Fees” means collectively:
the Software Fees; Subscription Fees; and Additional Services Fees.
·
“Force Majeure Event” has
the meaning attributed to it in Clause 12.
·
“Initial Software” means
the Software prior to it being updated with any Updates pursuant to this
Agreement.
·
“Licensee Representative”
means an individual who is an employee of the Licensee, who is competent and
trained in the use and operation of the Software.
·
“Licensor’s Website” means
the website accessible via www.dynistics.com.
·
“Report” means the output
generated by the Software by the Licensee.
·
“Reseller Contract” has the
meaning attributed to it in Clause 3.5.
·
“Software” means the
software known as “Active Dashboards” which is made available pursuant to this
Agreement to the Licensee; the definition for ‘Software’ also includes such
software as updated with any Updates.
·
“Software Fees” means the
amount expressed in the respective Dynistics Proposal as the ‘Software Fees’.
·
“Software Materials” means
the Software and Documentation collectively.
·
“Subscription Fees” means
the amount of the fees payable for the Support Services, as expressed in the
respective Dynistics Proposal as the ‘Subscription Fees’.
·
“Subject Matter” has the
meaning attributed to it in Clause 15.1.
·
“Support Line” means the
Licensor’s designated email or telephone number in respect of any support
requests, as detailed in Appendix 1.
·
“Support Services” means
the Licensor’s support services referred to in Appendix 1 (which includes the
provision of Updates).
·
“Term” means the period in
respect of which the Licensee has paid the Software Fees and the Subscription
Fees.
·
“Updates” has the meaning
attributed to it in Clause 1.3.
·
“we”, “our”, “us”
refers to Dynistics Limited.
·
“Working Day” means a day
falling within Monday to Friday (inclusive), but excluding any Public or Bank
holidays in England.
·
“Working Hours” means
between 9.30am to 5.30pm UK time during a Working Day.
·
“Year” means a period of 12
months commencing from either: the date expressed as the “Effective Date”
in the respective Dynistics Proposal or an anniversary of such date.
·
The headings contained in the
Agreement are for convenience of reference only and shall not affect its
interpretation.
·
References to “person” includes an
individual, company, public body, organisation, firm or partnership.
·
Words indicating the singular
shall include the plural and vice versa. Words indicating a gender shall
include each gender.
·
The words and phrases “includes”,
“including” or “in particular” (as well as any similar words or expressions)
shall be without limitation to the generality of any preceding words and any
preceding words shall not be construed as being limited to a particular class
where a wider interpretation of those words and phrases is possible.
Furthermore (except where already stated) such words shall be deemed to be
immediately followed by the words “without limitation”.
·
References to any statute or
statutory provision shall include (i) any subordinate legislation made under
it, and (ii) any provision which subsequently supersedes it or re-enacts it
(whether with or without modification).
- All sums payable hereunder are expressed exclusive of VAT
and any other applicable tax and duty payable upon such sums which shall
be added if appropriate at the rate prevailing at the relevant tax point.
- Where any obligations do not
have any time period specified in respect of them, the respective party (being
the Licensee or Licensor) agrees to undertake such obligations within a
reasonable period of time.
- Notwithstanding any provision to
the contrary, time shall not be of the essence with regard to the
performance of the Licensor’s obligations.
- Each Dynistics Proposal is
subject to the terms of the Licence and collectively forms a separate
contract. The references to the Agreement are therefore to the respective
Dynistics Proposal and the Licence. Therefore every time a separate
Dynistics Proposal is entered into, that forms a separate contract and
therefore Agreement between the parties (but it does not affect the
previous Agreements unless expressly stated otherwise in the respective
Dynistics Proposal).
(a)
any online order form completed by the Licensee on the Licensor’s
website for any licences for the Software;
(b)
the charging information, licence duration, licence details
contained within any order documentation provided by an Authorised Reseller in
respect of the Software, together with any services expressed to be provided by
the Licensor (rather than the Authorised Reseller); (although the Licensee
accepts that any claims arising in relation to the Reseller Contract will be
addressed by the Licensee with the Authorised Reseller through the Reseller
Contract rather than through the Agreement with the Licensor, as referred to in
Clause 3.5).
(a)
install and use the Software for its internal business purposes
only (and therefore not for the use of any third parties, unless otherwise
stated in the Agreement):
(i)
on one CPU if a single-user licence is being granted or the
Software is for single user use; or
(ii)
if the licence is a multi-user or network licence, for the number
of concurrent users agreed between the Licensee and the Licensor;
(iii)
as agreed between the parties in the Dynistics Proposal; or
(iv)
as otherwise agreed in writing after the date of the respective Dynistics
Proposal by the parties, with express reference being made to the fact that it
varies or supplements the Agreement;
(b)
make available the Reports, for viewing purposes by the Clients,
through the Software being hosted by the Licensee (or such other third parties
as expressly permitted to host the Software by the Dynistics Proposal) or
through the Licensee’s website (but for the avoidance of doubt, not on the
Licensee’s customers’ websites); for the avoidance of doubt, in such
circumstances, the Licensee is not a ‘Hoster’ for the purposes of this
Agreement;
(c)
make 1 copy of the Software for back-up purposes only, provided
that this is necessary for the activities permitted by Clause 3.1;
(d)
download and use any Updates (“Updates” consist collectively
of: (1) any general updates in respect of the Software made available by the
Licensor from time to time; together with (2) any instructions or software
wizards to allow the Licensee to implement any such updates made available by
the Licensor). For the avoidance of doubt, any such Updates will only be those
software versions which are generally made available by the Licensor, and such
software will not be any form of bespoke software produced specifically for the
Licensee. Any Updates will also be subject to the same restrictions and
obligations that the Licensee accepts in respect of the Software pursuant to
this Licence, unless the Licensor issues additional or replacement licence
terms in respect of such Updates (for the avoidance of doubt, any Updates will
not entitle the Licensee to any refunds pursuant to the Agreement, as the
Licensee can choose not to use such Updates, if the Updates contain any errors
or defects which affect the Licensee more adversely compared to the previous
version of the Software);
(e)
use any Documentation for the purposes of the use of the Software.
1.4
The Licensee’s ability to make available the Reports to its
Clients, is subject to the Licensee ensuring that:
(a)
it only permits viewing rights in respect of the Reports to its
Clients;
(b)
the basis on which it make the Reports available to its Clients does
not give rise to any liability on the part of the Licensor, nor allows the
Clients to bring any claims against the Licensor, nor create any contractual
relationship between the Clients and the Licensor;
(c)
the use of the Reports complies with all relevant legislative and
compliance obligations which are relevant to the Licensee’s and its Clients’
particular industries or sectors (including without limitation any: legal,
compliance and code of conduct requirements (for example, but without
limitation, in relation to financial services’ requirements, where applicable)),
as the Licensor does not provide any assurances that such Reports are compliant
with any industry or sector specific requirements (including without
limitation, the financial services authorities’ requirements or related
legislation);
(d)
it and its Clients are lawfully authorised to view the data
contained within the respective Reports; and
(e)
either it or its Clients accept full responsibility and liability
for the acts undertaken by its Clients using the Reports.
2.
Services
2.1
The Licensor will not be obliged to provide any services, other
than those expressly referred to as the Licensor’s responsibility in the
Agreement.
2.3
The Licensee agrees to pay the Licensor the Additional Services
Fees in respect of the Additional Services.
Support Services & Updates
2.4
The Licensee agrees to pay the Subscription Fees for the duration
specified in the respective Dynistics Proposal.
2.5
The Licensor agrees to provide the Support Services.
2.6
The Licensee acknowledges that it must request all support via
the Licensee Representative using the Support Line, and the Licensor will not
be obliged to provide any support services other than via the Licensee
Representative.
2.7
The Licensee may nominate upto two of its employees to act as the
Licensee Representatives. The Licensee may substitute its Licensee
Representatives with upto two alternative employees on written notice, with
such substitution not to take place more than once in any calendar month
(unless otherwise agreed by the Licensor).
2.8
The Licensor will make available any Updates which it generally
issues at its discretion from time to time, to the Licensee during the Term.
Any such Updates will be licensed to the Licensee by Dynistics subject to the
same restrictions that the Licensee must observe which are applicable to the
Software under the Agreement.
2.9
The Licensor will undertake virus scanning using reasonable
industry known software for such purposes (ensuring that this software is
updated with the latest updates made available by such third party software
licensors) in respect of the Updates which it makes available to the Licensee.
2.10
The Licensee acknowledges that if it chooses not to implement the
latest Updates, then the Licensee may suffer from issues which are addressed by
the latest Updates. Furthermore, the Licensor reserves the right at its
discretion not to provide support in respect of any previous versions of the
Software which have not had the Updates applied, to the extent that this
decision arises from:
(a)
the support issues being reported by the Licensee being addressed
in a subsequent Update;
(b)
the older version of the Software not being generally supported
by the Licensor anymore in respect of any of its customers (including without
limitation as referred to in Appendix 1); or
(c)
any other reasonable reason provided by the Licensor at the time
which reasonably justifies support not being provided.
2.11
A refusal by the Licensor to provide any Support Services in
circumstances where the Licensor is permitted such refusal by the Agreement,
will not give rise to any payment obligations by the Licensor to the Licensee
in respect of the Subscription Fees or otherwise.
2.13
For the avoidance of doubt, but subject to Clause 7, any Defect will
not give rise to any payment obligations on the part of the Licensor.
2.14
For the avoidance of doubt, and notwithstanding any provision to
the contrary, the Licensee may not reject any Software, nor receive any
payments, in respect of any Defects in relation to the provisions applicable to
the Support Services.
2.15
The Licensee accepts that it is its responsibility to undertake
all installations, implementations and configurations of any Updates provided
pursuant to this Agreement, except to the extent that the Licensor either: (1) agrees
to undertake any such tasks at the Licensor’s sole discretion; or (2) agrees to
do so as part of the Additional Services.
General
2.16
The Licensee agrees to provide all reasonable assistance,
facilities, information, materials, access and co-operation, as reasonably
requested by the Licensor, to enable the Licensor to perform its obligations in
relation to the Agreement.
2.17
The Licensee and Licensor both agree to use reasonable skill and
care in performing their respective obligations in respect of the Agreement.
3.
Licensee's
undertakings
(a)
not to copy the Software or Documentation except where such
copying is incidental to normal use of the Software or where it is necessary
for the purpose of back-up or operational security;
(b)
not to rent, lease, sub-license, loan, translate, merge, adapt,
vary or modify the Software or Documentation;
(c)
not to make alterations to, or modifications of, the whole or any
part of the Software nor permit the Software or any part of it to be combined
with, or become incorporated in, any other programs;
(d)
not to disassemble, de-compile, reverse engineer or create
derivative works based on the whole or any part of the Software nor attempt to
do any such things except to the extent that (by virtue of section 296A of the
Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because
they are essential for the purpose of achieving inter-operability of the
Software with another software program (provided that such information has been
requested from the Licensor and it has not been forthcoming within a reasonable
period of time following a comprehensive explanation by the Licensee as to why
it requires such information), and provided that the information obtained by the
Licensee during such activities:
(i)
is used only for the purpose of achieving inter-operability of
the Software with another software program;
(ii)
is not disclosed or communicated without the Licensor's prior
written consent to any third party to whom it is not necessary to disclose or
communicate it; and
(iii)
is not used to create any software which is materially similar to
the Software;
(e)
to keep all copies of the Software secure and to maintain
accurate and up-to-date records of the number and locations of all copies of
the Software;
(f)
to supervise and control use of the Software and ensure that the
Software is used by the Licensee’s employees and representatives in accordance with
the terms of the Agreement;
(g)
not to provide, or otherwise make available, the Software in any
form, in whole or in part (including, but not limited to, program listings,
object and source program listings, object code and source code) to any party (other
than the Licensee’s employees) without the prior written consent from the
Licensor;
(h)
only to use the Software in accordance with such software and
hardware that is described in the Licensor’s published literature as the
specification requirements for such Software;
(i)
to virus scan the Software (and Updates) both before, during and
after installation of the Software (and any Updates), and to maintain in force
reasonable anti-virus scanning measures to guard against any virus issues;
(j)
to use the Software for displaying business and financial data
relating to company performance only;
(k)
not to use the Software for any mission critical purpose, nor to
use the Software as the sole basis for any decision making;
(l)
not to use the Software in relation to the operation or
management of nuclear facilities, aircraft navigation or communication systems,
air traffic control systems, life support machines or other equipment or
environments in which the failure of the Software could lead to death, personal
injury, or physical or environmental damage.
3.2
The Licensee agrees to permit the Licensor and its
representatives, at all reasonable times and on reasonable advance notice, to
inspect and have access to any premises, and to the computer equipment located
there, at which the Software or the Documentation is being kept or used, and
any records kept pursuant to the Agreement, for the purpose of ensuring that the
Licensee is complying with the terms of the Agreement.
3.3
The Licensee agrees
that it may only use licences designated as “Developer Server Licences” by the Licensor, its Authorised Resellers or
distributors, in the following manner:
(a)
to develop, configure or test developments or
configurations (but not for trialling, evaluating or any other activity in
relation to the Software) in respect of the Software in a non-live environment
on a designated server of the Licensee, with the intention that such
developments or configurations will subsequently be reflected in the live
environment pursuant to the other user licences for the Software that the
Licensee has.
3.4
The Licensee agrees
that it may only use licences designated as “Evaluation Licences” or “Trial Licences” by the Licensor, its Authorised Resellers or
distributors, in the following manner (for
the avoidance of doubt, if any Software licence is provided by any of the
afore-mentioned parties without charge to the Licensee, then such Software
licence will also be deemed to be designated as an “Evaluation Licence”):
(a)
to test and evaluate
the functionality of the Software in a non-live environment, to help it
determine whether it wishes to purchase a licence for commercial use of the
Software;
(b)
for no commercial or
business use whatsoever;
(c)
in no manner which
would give rise to any liability to the
Licensee, the Licensor or any other third party.
3.5
The Licensee accepts
that the Licensor is not liable or responsible to the Licensee for the acts or
omissions of the Authorised Reseller or Hoster, nor for the performance of any obligations which have been agreed between an
Authorised Reseller or
Hoster and the Licensee (such third party
arrangement being referred to as the “Reseller Contract”). The Licensee accepts that this is reasonable,
as the Licensee will have its rights and remedies against the Authorised Reseller or
Hoster in such circumstances governed by the Reseller Contract.
4.1
The Licensee shall pay
the Licensor the Fees in accordance with the provisions of the
Agreement.
Pricing Changes
4.2
The Licensor shall be
entitled to increase its standard charges and rates for subsequent licence
purchases, subsequent Years of Support Services that the Licensee has not
committed to at the date of the rate or charge revision, and any subsequent
additional services that the Parties
subsequently agree.
4.3
Any revisions to the
charges for the Support Services for subsequent Years shall be advised at least
90 days prior to them taking effect, so that the Licensee can decide at least 30 days
prior to the respective renewal of the
Support Services, as to whether it wishes to renew or not. Unless the Licensee communicates in writing to
the Licensor, its decision not to renew the Support Services at least 30 days prior to the renewal date, then the Support
Services will be renewed for another Year on
the basis of the Licensor’s rates in force at that time. For the avoidance of
doubt, the Licensor may not continue using the Software if it does not renew
the Support Services.
Invoice Payment Terms
4.4
The Licensee shall pay the charges invoiced pursuant to the Agreement, to the Licensor within 14 days of the date of invoice.
Late Payment & Disputed Invoices
4.7
The Licensee agrees
that if it attempts to withhold or set-off any amounts other than as permitted
by Clauses 4.5 and 4.6, this will constitute a material breach of the Agreement which is
incapable of remedy.
4.8
Without prejudice to
any other right or remedy of Dynistics, if
the Licensee fails to make any payment under the Agreement by the due date for payment then the Licensor shall be entitled to charge the Licensee, and the
Licensee shall pay the Licensor on demand, interest on the unpaid amount in accordance with the Late Payment of Commercial Debts
(Interest) Act 1998 from the due date for payment until the payment is received
in full by the Licensor.
4.9
Subject to Clause 4.5, and without prejudice to the the Licensor’s additional rights and remedies, if the Licensee fails to promptly pay an
invoice (or otherwise fails to comply with its obligations under the
Agreement), the Licensor may suspend the provision of any services under the Agreement, by providing notice in
writing of such suspension. Such suspension will be effective immediately upon
provision of such notice by the Licensor (or such later date stipulated within the notice).
5.
Back-ups,
Business Continuity & Anti-Virus Measures
5.1
The Licensee agrees:
(b)
that prior to installing, implementing or configuring any Update,
it will undertake a backup of its data and software to safeguard against any
issues arising from the Update (or its installation, implementation or
configuration);
(c)
that it has in place a reasonable backup procedure in respect of
its systems, which includes at least its own daily data backups (including
backups of any software and data which the Software interacts with, or may
interact with), and has disaster recovery and business continuity and data
restoration measures in place, including without limitation, in respect of any
data corruption and data loss;
(e)
that it will implement reasonable firewall arrangements to
safeguard its systems.
6.
Intellectual
property rights
6.1
The Licensee acknowledges that all
intellectual property rights in the Software and the Documentation throughout
the world belong to the Licensor and its third party licensors, and that rights
in the Software are licensed (not sold) to the Licensee, and that the Licensee
has no rights in, or to, the Software or the Documentation other than the right
to use them in accordance with the terms of the Agreement.
6.2
The Licensee acknowledges that it
has no right to have access to the Software in source code form or in unlocked
coding or with comments.
7.1
The Licensor warrants that:
(a)
the CD or DVD medium on which the Initial Software is provided (at
the time it is supplied by the Licensor) is, and will be, for the period of 30 days
after that time (“Media Warranty Period”), free from defects in
design, material and workmanship under normal use. If a defect in the medium
occurs during the Media Warranty Period, the Supplier will replace (as the
Licensee’s sole and exclusive remedy in respect of such defect) the medium free
of charge if the Licensee returns it to the Supplier with proof of purchase;
(b)
during 30 days from when the Initial Software is first provided
to the Licensee (such 30 day period being the “Warranty Period”), the Initial
Software will, when properly used, perform materially in accordance with the
functions described in the Documentation, and the Documentation describes the
operation of the Initial Software in all material respects.
7.3
The Licensee acknowledges that the
Software may not be free of bugs or errors and the Licensee agrees that the
existence of any minor errors shall not constitute a breach of the Agreement.
7.4
If, within the Warranty Period, the
Licensee notifies the Licensor in writing of any defect or fault in
the Initial Software in consequence of which it fails to perform materially in
accordance with the Documentation, and such defect or fault does not result
from the Licensee having amended the Initial Software or used it in
contravention of the terms of the Agreement, the Licensor will within a
reasonable period of time, at its sole option, repair or replace the Initial Software,
provided that the Licensee makes available all information that may be
necessary to assist the Licensor in resolving the defect or fault, including
sufficient information to enable the Licensor to recreate the defect or fault.
To the extent that the Licensor is unable to repair or replace the Initial Software
in a manner which ensures that it is in material compliance with the
Documentation, it shall terminate the Agreement and the Supplier shall refund
the Licensee the Software Fees which the Licensee has paid to the Supplier in
respect of such Initial Software (and the Supplier shall refund any Subscription
Fees and Additional Services Fees paid by the Licensee to the Supplier, as such
charges are referred to in the respective Dynistics Proposal, in respect of the
Supplier’s services which are now rendered redundant as a result). The remedies
in this Clause 7.4, represent the Licensee’s sole and exclusive remedies in respect
of the circumstances referred to in this Clause.
8.2
Subject to Clause 8.1 the Licensor shall not be liable under
or in connection with the Agreement or any collateral contract, whether such
loss arises under contract, statute, tort (including without limitation
negligence or otherwise) for:
(a)
loss of income;
(b)
loss of business profits or contracts;
(c)
business interruption;
(d)
loss of the use of money or anticipated savings;
(e)
loss of information;
(f)
loss of opportunity, goodwill or reputation;
(g)
loss of, damage to or corruption of data; or
(h)
any indirect, incidental, special 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 8.2 shall not prevent the
operation of the express refund provisions referred to in the Agreement, nor
any other claims for direct financial loss to the extent that they are not
excluded by any of categories (a) to (h) inclusive of this Clause 8.2. For the
avoidance of doubt, the exclusions in Clauses 5.2(a) to 5.2(g) inclusive, apply
whether the losses are direct, indirect, incidental, consequential or special
losses.
8.3
Subject to Clause 3.5, 8.1, 8.2 and 8.4, the Licensor's
maximum aggregate liability under or in connection with the Agreement, or any
collateral contract, whether such liability arises under contract (including
without limitation, in relation to any deliberate repudiatory and fundamental
breaches), statute, tort (including without limitation negligence) or
otherwise, shall be limited to a sum equal to 100% of the charges paid by the
Licensee to the Licensor in respect of the Agreement. This is subject to the
following sub-caps on limits of liability:
(b)
The Licensor’s aggregate liability for all issues in relation to
the Support Services is limited in aggregate in respect of the totality of all
such claims to the amount of the Subscription Fees paid by the Licensee to the
Licensor in respect of the Year in which the events giving rise to the
liability arose;
(c)
The Licensor’s aggregate liability for all issues in relation to
the Additional Services is limited in aggregate in respect of the totality of
all such claims to the amount of the Additional Services Fees paid by the
Licensee to the Licensor in respect of those specific services in respect of
the Year in respect of which the events giving rise to the liability arose;
8.4
The limits of liability referred to in Clause 8.3 above, are
applicable in respect of each separate Agreement, rather than aggregating the
value of all Dynistics Proposals for the purposes of Clause 8.3.
8.5
Subject to Clauses 8.1, 8.2 and Clause 8.3, the Licensor's
liability for infringement of third party intellectual property rights shall be
limited to breaches of rights subsisting in the UK.
8.6
The Agreement sets out the full extent of the Licensor's
obligations and liabilities in respect of the supply of the Software and
Documentation.
9.1
The Licensor may terminate the Agreement immediately by written
notice if:
(a)
the Licensee commits a breach of the Agreement; or
(c)
the Licensee suffers or undergoes any procedure analogous to any
of those specified in Clause 9.1(b); or
(d)
the Licensee suffers or undergoes any procedure available against
or to an insolvent debtor or available to the creditors of such a debtor in the
country in which the Licensee is constituted, established or domiciled.
9.2
The Licensee may terminate the Agreement immediately upon notice
in writing to the Licensor in the event that:
(a)
the Licensor commits a breach of its obligations under the
Agreement and:
(i)
such breach is material and cannot be remedied; or
(ii)
such breach is material and possible to remedy and the Licensor
fails to remedy such breach within 30 days of having been required in writing
to remedy such breach;
(b)
the Licensor shall present a petition or have a bona fide
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
virtue of the relevant statutory provisions under the applicable law to be
unable to pay its debts.
9.3
Upon termination for any reason:
(a)
all rights granted to the Licensee under the Agreement shall
cease;
(b)
the Licensee must cease all activities authorised by the
Agreement;
(c)
the Licensee must immediately pay to the Supplier any sums due to
the Supplier under the Agreement; and
(d)
the Licensee must immediately delete or remove the Software
Materials from all computer equipment in its possession and immediately destroy
or return to the Supplier (at the Supplier's option) all copies of the Software
Materials then in its possession, custody or control and, in the case of
destruction, certify to the Supplier that the Licensee has done so.
9.4
Termination of one Agreement does not affect any other Agreement
nor any other contract in force between the parties, unless otherwise expressly
agreed in writing by the parties.
10.2
The Licensee may not transfer, assign, charge or otherwise
dispose of the Agreement, or any of its rights or obligations arising under it,
without the Licensor’s prior written consent.
10.3
The Licensor may transfer, assign, charge, sub-contract or
otherwise dispose of the Agreement, or any of its rights or obligations arising
under it, at any time during the term of the Agreement.
All notices from the Licensee must be sent to the Licensor at
its address as stated above. The Licensor may communicate updated notice address
details to the Licensee, either by direct communication with the Licensee or
via the Licensor’s Website. Notice will only be successfully served by the
Licensee where it is either expressly acknowledged in writing by the Licensor,
or where the notice has been provided by tracked postal or courier delivery and
the courier or postal report shows a signed receipt of the notice by the
Licensor.
12.2
A Force Majeure Event includes without limitation, any act,
event, non-happening, omission or accident beyond the Licensor’s reasonable
control, and includes in particular (but without limitation) the following:
(a)
fire, explosion, storm, flood, earthquake, subsidence, epidemic
or other natural disaster;
(b)
any unavailability of the use of public or private
telecommunications networks;
(c)
the acts, decrees, legislation, regulations or restrictions of
any government;
(d)
failure of supplies: of power, fuel, transport, equipment, raw
materials or other goods or services;
(e)
viruses, spyware or other malware.
12.3
The Licensor's performance under the Agreement is deemed to be
suspended for the period that the Force Majeure Event continues, and the
Licensor will have an extension of time for performance for the duration of
that period. If the Force Majeure Event continues for more than 60 continuous
days, then either party may (whilst such Force Majeure Event is continuing)
terminate the Agreement for convenience; in such circumstances, the Supplier
will provide a pro-rata refund to the Licensee of any Fees in respect of the
Software, Support Services and Additional Services which have been paid by the
Licensee to the Supplier for any unexpired term of the current annual period (measured
from the respective dates of the suspension of the Licensor’s respective
performance obligations). This represents the Licensee’s sole and exclusive
remedies in respect of this Clause.
13.1
If the Licensor fails, at any time during the term of the
Agreement, to insist on strict performance of any of the Licensee’s obligations
under the Agreement, or if the Licensor fails to exercise any of the rights or
remedies to which it is entitled under the Agreement, this shall not constitute
a waiver of such rights or remedies and shall not relieve the Licensee from
compliance with such obligations.
13.2
A waiver by the Licensor of any default shall not constitute a
waiver of any subsequent default.
13.3
No waiver by the Licensor of any of these terms shall be
effective unless it is expressly stated to be a waiver and is communicated to the
Licensee in writing.
If any of the terms of the Agreement are determined by any
competent authority to be invalid, unlawful or unenforceable to any extent,
such term or provision will to that extent be severed from the remaining terms
and provisions, which will continue to be valid to the fullest extent permitted
by law.
15.4
Clause 15 operates subject to Clause 18.
The Licensor and Licensee do not
intend any third party to have any benefit under the Agreement. The Licensor
and Licensee (being the parties to this Agreement) therefore agree that no
third party shall have the right to enforce any term of the Agreement.
17.
Law
and jurisdiction
The Agreement, its subject matter, its formation and disputes
and claims shall be governed by and construed in accordance with English law
and submitted to the exclusive jurisdiction of the English courts.
18.1
No variation to the Agreement shall be binding unless it is
confirmed in writing by the Licensor: (1) by email or in writing on its
letterheaded paper, with any such communication being required to expressly
state that it is a variation to the “Dynistics EULA”; or (2) on the
Licensor’s website as revised terms in respect of this Licence. The other
provisions of this Licence will therefore apply subject to such variation.
18.2
To the extent that there is any conflict or ambiguity between the
provisions of the Licence and the Dynistics Proposal, the terms of the Licence
will prevail, except to the extent that the Dynistics Proposal states that the
respective provision of the Dynistics Proposal is a variation to the Licence,
in which case that respective provision of the Dynistics Proposal will prevail
over the respective provision of the Licence.
18.3
Any variation document entered into between the parties after the
date that the Agreement is entered into, will modify the Agreement accordingly.
Appendix 1: Support Services
The Support Services consist of:
·
the provision
of the support by the Licensor in accordance with the provisions of this
Appendix 1; together with
·
the making
available of any Updates by the Licensor to the Licensee.
Maintenance Services
The Licensor agrees to provide the following Updates during
the Term:
·
Major Product Releases and Documentation
The Licensor will make available
to the Licensee all major product updates (a “Major product release”), namely
those updates of the Software which add functionality and result in a whole
version number change, for example version 6 to version 7, and their associated
documentation.
·
Minor Product Releases
The Licensor will notify the
Licensee of all “Minor product releases” (being those between Major
product releases which are for the purposes of product maintenance and which
may fix Software faults and/or may add functionality).
1
Problem Reporting
The Licensee Representative must make any support requests
via the Support Line.
The timelines then referred to for acknowledgment and
responding to support requests are shown below, and are target times only.
Although the Licensor will use reasonable endeavours to comply with such
timescales, the Licensor’s failure to comply with such timescales, will not give
rise to any remedies to the Licensee for such failure (although this provision
does not operate to relieve the Licensor from acting reasonably in considering
and actioning support requests).
2
Support Line
|
Technical Help Desk
Telephone:
|
0121 506 9076
|
|
E-mail:
|
support@dynistics.com
|
3
Normal Support Hours
Normal support hours are the Working Hours.
4
Support Request Categories
The Licensor will only be required to consider support
requests from the Licensee Representative which are submitted via the Support
Line, and then only to the extent that such support requests are in respect of
Defects. Any other support requests may be considered by the Licensor at the
Licensor’s sole discretion from time to time.
Defects will be categorised as set out in the table below by
the Licensor, in accordance with the Licensor’s reasonable opinion at the time
each support request is generated. The Licensor may subsequently change the
priority of a Defect if it is reasonable to do so in the circumstances.
|
Defect Category
|
Category Description
|
|
Critical
|
A Defect which prevents all of the functionality of
Software from being used at all.
|
|
Severe
|
A Defect which materially adversely affects the use of
the Software.
|
|
Medium
|
A Defect which adversely affects the use of the
Software, but more than in a minor manner.
|
|
Minor
|
A Defect which does not fall into the above
categories, and therefore is a minor Defect.
|
5
Acknowledgement
Times
Once the support request in
respect of a Defect has been received by a technical representative of the
Licensor (and provided that the Licensee has complied with its obligations with
regard to the information to be stated as part of the e-mail as set out below,
in circumstances where the support request has been sent by email), then the
Licensor shall send an acknowledgement of the support request to the Licensee
Representative in accordance with the time-scales described below:
|
Reporting Method
|
Problem Category
|
Acknowledgement Time
|
|
Telephone
|
Critical
|
Immediate
|
|
|
Severe
|
Immediate
|
|
|
Medium
|
Immediate
|
|
|
Minor
|
Immediate
|
|
E-mail
|
Critical
|
4 Working Hours from
receipt of support request by a technical representative of the Licensor
|
|
|
Severe
|
6 Working Hours from
receipt of support request by a technical representative of the Licensor
|
|
|
Medium
|
8 Working Hours from
receipt of support request by a technical representative of the Licensor
|
|
|
Minor
|
2 Working Days from
receipt of support request by a technical representative of the Licensor
|
Note that the speed of e-mail
communications is dependent on the integrity and performance of the Internet,
e-mail service provision and related networks.
The Licensee must clearly state the subject of the e-mail to
begin with the ‘Defect Category’ type (e.g. 'Critical') if it believes the Defect
to be such.
When acknowledging the support request, the Licensor shall allocate
an incident number to the said support request and the Licensee must quote such
incident number in all related communications thereafter. For the avoidance of
doubt, the provision of an incident number is not a confirmation by the
Licensor that the support request is in respect of a Defect, nor that it is a
valid support request.
6
Response
Times
The Licensor shall use reasonable
endeavours to provide a resolution, workaround or plan to provide either of the
foregoing, within the following times-scales:
The Licensor’s obligation to
undertake the above, together with its other support obligations pursuant to the
Agreement in respect of any Defect, will only apply to the extent that the Defect
is capable of reasonably being re-created by the Licensor, so that the Licensor
can diagnose the Defect. To the extent that re-creation of the Defect in such
manner is not reasonably possible, the parties agree that the Licensor will
have no obligations in respect of such reported Defect (whether to rectify or
otherwise).
7
Progress
Reports
The Licensor will provide the Licensee with regular progress
notifications on the status of a Defect at a frequency to be reasonably
determined by the Licensor,
however, with regard
to Defects which are categorised as ‘Critical’ by the Licensor, the Licensor
shall provide such progress notifications every 4 Working Hours.
8
Additional
Responsibilities
The Licensee shall provide the
Licensor with reasonable co-operation, information and assistance to allow the
Licensor to fulfil its support obligations pursuant to the Agreement. Such
co-operation and assistance shall include, but not be limited to:
·
A reasonable level of responsiveness to the Licensor’s
requirements and communications;
·
The timely transmittal and release to the Licensor of appropriate
and accurate documentation, information and sufficient data, including where
necessary copies of the appropriate dashboards and data from the supported
system or other software, to enable the Licensor to reproduce the reported
incident;
·
the making of facilities and personnel available to assist the
Licensor when and to the extent that this is reasonably requested; and
·
upon reasonable request the Licensee shall ensure that the
Licensor’s support personnel are provided with the appropriate approvals,
access information and remote electronic access to the Licensee’s system, via
an internet link if necessary, for the purpose of investigating or rectifying
reported issues (to include permission for file transfer to and from the system).
The Licensor shall not be obliged to continue to provide support services in
respect of the issue if the Licensee cannot provide or obtain such approvals,
information and access as required by the Agreement.
Any delay in providing the
assistance above or time spent by the Licensor investigating inaccurate,
incomplete or misleading information shall not count when considering the time
taken to respond.
9
Exclusions
from Support Services
The Licensor will not be obliged
to provide any support services in circumstances where the respective Subscription
Fees have not been paid by the Licensee.
The Licensor shall be under no
obligation to provide support services in respect of any issues arising from:
a)
any
modifications or customisation of the Software, including without limitation, the
underlying XML, not made by the Licensor;
b)
the incorporation
of the Software or its output in any other software;
c)
any software
other than the Software;
d)
incorrect or
unauthorised use of the Software or operator error where this arises from use
or operation not in accordance with the Documentation;
e)
the use of
the Software for a purpose for which it was not designed;
f)
any fault in
any computer hardware;
g)
any programs
used in conjunction with the Software;
h)
use of the
elements of the Software in any combination other than those specified in the
Documentation;
i)
use of the Software
with any other software or products that the Licensor has not expressly
authorised in writing to be used with the Software;
j)
use of the Software
with computer hardware, operating systems or other supporting software other
than those specified in the Documentation or in the Agreement;
k)
an incident
caused by malicious intent or negligence on the part of the Licensee;
l)
any issues
associated with viruses;
m)
any issue
where the Defect is resolved in a newer Update which has been made available by
the Licensor but which has not been installed and activated by the Licensee;
n)
the failure
by the Licensee to implement recommendations or solutions previously advised or
made available by the Licensor;
o)
any Software
that is more that twelve months old from date of release.
The support services to be
provided by the Licensor pursuant to this Agreement, shall not include the
following:
a)
diagnosis or
rectification of problems not associated with the Software;
b)
diagnosis or
rectification of problems which cannot be reasonably re-created or examined by the
Licensor with the Software;
c)
rectification
or restoration of lost or corrupted data or files or software, arising for any
reason;
d)
hardware
set-up or hardware issues (including without limitation, networks and
printers);
e)
assisting
with any virus issues;
f)
any software
development work by the Licensor (except to the extent that it is undertaken by
Dynistics to remedy the Defect);
g)
any training,
installation or consultancy services (except to the extent expressly agreed as Additional
Services; for the avoidance of doubt, Additional Services are separate from the
Support Services);
h)
any support
or services not in respect of any Defects.
Where the Licensor
provides any support services at its sole discretion, where such support
services are excluded from the scope of this Agreement, then the provisions of
such services will not operate to vary this Agreement by conduct nor otherwise
(and for the avoidance of doubt, will not create any obligation on the Licensor
to undertake such services on future occasions). Furthermore, in such
circumstances, the parties agree that the limitations and exclusions of
liability set out in this Agreement will also operate for the benefit of the
Licensor in such circumstances, with regard to limiting and excluding any
liability of the Licensor in relation to any issues arising from such services
(as they will be deemed for limitation of liability purposes to be part of the
Support Services).
10
Escalation
Procedure
The Licensee may wish to contact the Licensor's management
in order to escalate the Licensor's response to the Defect when reasonably
appropriate e.g. dissatisfaction with the Licensor's performance, repeated
failure to meet response times. Such escalation shall proceed according to the
numerical order set out below:
|
1
|
Operations Manager
|
|
2
|
Managing Director
|