INTERPRETATION

The definitions and rules of interpretation in this clause apply in this Agreement.

Acceptance Date: the date on which the Customer is deemed to have accepted the Software under clause 7.

Affiliate: includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Customer: the end-user of Supplier Software Products and Services.

Fee: the licence fee payable by the Customer to the Reseller under clause 5 and as agreed in the Purchase Agreement.

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Reseller or its end users (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and rights in domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Maintenance: the form of maintenance for the Software Products and Services agreed between the Customer and Supplier in this Agreement.

Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

Mandatory Policies: the Supplier’s policies [insert link here] as amended without notification to the Customer from time to time.

New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Open-Source Software: any software programs which are licensed under any form of open-source licence meeting the Open Source Initiative’s open source definition from time to time.

Purchase Agreement: a sale agreement between the Customer and Reseller for the provision of Supplier Software Products and Services.

Reseller: means the entity selling Supplier Software Products and Services to the Customer .

Site: the premises from which the Customer carries out its business as stated above or as notified to the Supplier in writing from time to time.

Source Code Materials: the source code of the Software, and all technical information and documentation required to enable the Reseller to modify and operate it.

Specification: the document detailing the specification of the Software.

Supplier: the developer of the Software Products and Services sold by the Reseller to the Customer.

Supplier Software Products: the products (including software) listed in the Purchase Agreement.

Supplier Software Services: means Supplier services as agreed between the Customer and Supplier in the Purchase Agreement.

Territory: the United Kingdom.

DELIVERY, ACCEPTANCE AND INSTALLATION

The Supplier shall install on the Customer’s equipment one copy of the Software electronically or on physical media to the Customer at the address for the Customer (stated above) within [NUMBER] days of signature of this agreement. Risk in any tangible media on which the Supplier Software Products and Services are delivered shall pass on delivery.

Within 24 hours of installation, the Reseller shall supply data (Test Data) to the Supplier suitable to test whether the Software operates in accordance with the Specification (Acceptance Testing) together with the results (Test Results) it reasonably expects to be achieved by processing the Test Data using the Software.

If the Supplier can show the Customer that the Test Data or Test Results are not suitable for Acceptance Testing, the Customer shall make such amendments to the Test Data and Test Results as the Supplier may reasonably request and provide the amended versions to the Supplier within seven days of the request.

Within [seven] days of receipt of suitable Test Data and Test Results, the Supplier shall carry out Acceptance Testing in the virtual presence of the Customer or its Authorised Agent.

If the initial Acceptance Testing fails, the Supplier shall, within seven days of the Acceptance Testing and at its cost, correct the errors so disclosed and repeat the Acceptance Testing in the virtual presence of the Customer or its Authorised Agent.

If the subsequent Acceptance Testing fails, the Customer may discontinue this agreement by written notice, or require the Supplier to repeat the actions described in clause 4 and clause 2.5 as often as the Customer wishes (subject to the limitation specified below). If the agreement is so discontinued, the Reseller shall, within seven days of receipt of that notice, refund all monies paid by the Customer under this agreement, and on receipt of that refund this agreement shall terminate. If subsequent Acceptance Testing continues to fail, the Customer shall continue to have the same rights as described above until failure of the [3rd Acceptance Testing, or (if earlier) the date on which the Supplier reasonably determines that further Acceptance Testing will not be successful within a reasonable period, whereupon the Customer shall discontinue this agreement.

The Customer shall be deemed to have accepted the Supplier Software Products and Services if:

the Acceptance Testing is certified by the Supplier to be successful;

the Customer fails to provide the Test Data and Test Results within either of the time limits set out in clause 3 and clause 2.4 the Customer commences operational use of the Supplier Software Products and Services.

LICENCE

In consideration of the Fee paid by the Customer to the Reseller, receipt of which the Reseller hereby acknowledges, the Supplier grants to the Customer a non-exclusive licence for the full period of the copyright in the Supplier Software Products and Services commencing on and including the Acceptance Date to use the Software at the Site only.

In relation to the scope of use:

• for the purposes of clause 1, use of the Supplier Software Products and Services shall be restricted to use of the Software in object code form in the manner specified in Schedule 1 for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).

• For the purposes of clause 1, “use of the Supplier Software Products and Services” means loading the Supplier Software Products and Services into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not “use” if the Supplier Software Products and Services are licensed under this licence for use on each computer to which the Supplier Software Products and Services are distributed.

• the Customer may not use the Supplier Software Products and Services other than as specified in clause 1 and clause 3.2(a).

• the Customer may make backup copies of the Supplier Software Products and Services as may be necessary for its lawful use but not without the written consent of the Supplier. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.

• except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Supplier Software Products and Services with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.

• the Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of any terms of this Agreement howsoever arising.

• the Supplier may treat the Customer’s breach of any terms of this Agreement as a breach of this licence.

The Customer may not use any such information provided by the Supplier or obtained by the Reseller during any such reduction permitted under clause 2(e) to create any software whose expression is substantially similar to that of the Software Products and Services nor use such information in any manner which would be restricted by any copyright subsisting in it.

The Customer shall not:

• sub-license, assign or novate the benefit or burden of this licence in whole or in part;
• allow the Supplier Software Products and Services to become the subject of any charge, lien or encumbrance; and
• deal in any other manner with any or all of its rights and obligations under this agreement,

without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.

The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

Notwithstanding clause 7, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 7 shall be made until notice of the identity of the proposed assignee has been given to the other party.

The Customer shall:

• [ensure that the number of persons using the Supplier Software Products and Services does not exceed [ the number of users mentioned in the Purchase Order.
• ensure that the Supplier Software Products and Services are installed on designated equipment only;
• keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
• notify the Supplier as soon as it becomes aware of any unauthorised use of the Supplier Software Products and Services by any person;
• pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 3, from such date to the date of payment.

The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software Products or Services are being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

MAINTENANCE

• The Supplier shall provide the Customer with maintenance and support generally made available to its Customers according to the Purchase Order terms. The standard warranty is 30 days from the date of the installation.

• The Supplier shall install all Maintenance Releases as soon as reasonably practicable after receipt.

• The Customer shall ensure the Supplier has all the relevant information required as reasonably necessary to perform any maintenance and to comply with any of Supplier obligations in this Agreement.

FEES

The Customer shall pay to the Reseller the applicable Fee agreed in the Purchase Agreement.

CONFIDENTIALITY AND PUBLICITY

• Each party undertakes that it shall not at any time, and for a period of two years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, assets, affairs, Resellers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted in this Agreement.

• Each party may disclose the other party’s confidential information:
• to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 7; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

• No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

• No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

EXPORT AND COMPLIANCE WITH POLICIES

• Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.



• Each party undertakes:
• contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
• if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

SUPPLIER’S WARRANTIES

• The Supplier does not warrant that the use of the Supplier Software Products and Services will be uninterrupted or error-free or that it will meet any Heightened Cybersecurity Requirements.
• The Customer accepts responsibility for the selection of the Supplier Software Products and Services to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
• The Customer acknowledges that any Open-Source Software provided by the Supplier is provided “as is” and expressly subject to disclaimers in this Agreement.
• All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

LIMITS OF LIABILITY

• Except as expressly stated in this Agreement:
• the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
• special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
• loss of profits;
• loss of anticipated savings;
• loss of business opportunity;
• loss of goodwill;
• loss or corruption of data;
• wasted expenditure,

Provided that this clause 9.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 10.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 9.1(a);

• the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
• the Customer agrees that, in entering into this agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this agreement.
• The Supplier does not exclude liability for:
• death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
• fraud or fraudulent misrepresentation;
• breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
• any other liability which may not be excluded by law.
• All dates supplied by the Supplier for the delivery of the Supplier Software Products and Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
• All references to “the Supplier” in this clause 9 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with this clause.

INTELLECTUAL PROPERTY RIGHTS

10.1 The Customer acknowledges that all Intellectual Property Rights in the Software Products and Services and any Maintenance Releases belong and shall belong to the Supplier or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software Products and Services other than the right to use it in accordance with the terms of this agreement.

TERMINATION

• Without affecting any other right or remedy available to it, the Customer’s licence to use Supplier Software Products and Services may be terminated with immediate effect by giving written notice to the Supplier or Reseller depending on who sold the product to the Customer.
• Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
• On termination for any reason:
• all rights granted to the Customer under this agreement shall cease;
• the Customer shall cease all activities authorised by this agreement;
• the Customer shall immediately pay to the Supplier any sums due to the Supplier under this agreement; and the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Supplier Software Products and Services then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.

WAIVER

• A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
• A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

REMEDIES

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

ENTIRE AGREEMENT

• This agreement, the schedules and the documents annexed as appendices to this agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all previous and contemporaneous agreements, arrangements and understandings between them, whether written or oral, relating to that subject matter.
• Each party acknowledges that, in entering into this agreement and the documents referred to in it and annexed to it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) (Representation) other than as expressly set out in this agreement or those documents.
• Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
• Nothing in this clause shall limit or exclude any liability for fraud.

VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

SEVERANCE

• If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
• If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

THIRD-PARTY RIGHTS

A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

NO PARTNERSHIP OR AGENCY

• Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
• Each party confirms it is acting on its own behalf and not for the benefit of any other person.

FORCE MAJEURE

The Supplier shall not be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control.

NOTICES

• Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any case).
• Any notice shall be deemed to have been received:
• if delivered by hand, at the time the notice is left at the proper address;
• if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
• if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
• This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.

GOVERNING LAW AND JURISDICTION

• This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
• The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).