Conserve Software Solutions Limited: Licence Terms

1. Definitions
   
   "the Client" means the person, firm or company named on the Order as the Client.
   
   "Confidential Information" means all trade secret and confidential or proprietary information of either party, including (without limitation) all information, data, drawings, specifications, documentation, software listings, source or object code which Conserve may have imparted and may from time to time impart to the client relating to the software.
   
   "Effective Date" means the date upon which the client signs the Order or, if earlier or if the Client does not sign the Order, the date on which the Client first uses the Software in relation to the Service.
   
   "the Licence Fee" means the Licence Fee referred to in the Order.
   
   "the Licence" means the licence granted under clause 2.
   
   "the Order" means the order form to which these terms are attached.
   
   "the Software" means all software made available to or used for the purposes of the Client in connection with this agreement, and any upgrades to, enhancements of and adaptations of the Software whether created by Conserve, the Client or by any third party.
   
   In relation to the Support Service:
   
   "Fault" means a failure of the Software to provide the functionality set out in the descriptions and specifications of the Software made available to the Client by Conserve before the date of this agreement.
   
   "Maintenance Contact" means a person nominated in writing by the Client for the purposes of reporting the Client's requirements for the Support Service and for other support for the Software.
   
   "Support Service" means the service referred to in clause 4.
   
   
2. Issue and Use of Software
   
   2.1 Upon payment of the Licence Fee Conserve shall issue to the Client one copy of the Software for Use on computers used by the Client solely for the purposes of its business and situated at the Client's business premises ("the System"), together with the necessary documentation, to install and Use the same.
   
   2.2 For the purposes of the Licence, "Use" shall mean and include:
   
   2.2.1 utilisation of the software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk) of the System for the processing of the instructions or statements contained in the Software;
   
   2.2.2 copying the Software in machine-readable form for back-up, provided that no more than two such copies will be in existence at any one time;
   
   2.2.3 storing the Software on the permanent memory of the System;
   
   2.2.4 utilising (but not copying) the instructional and/or operational manuals relating to the Software.
   
   2.3 The Licence allows the Client to use the Software to satisfy its internal requirements, but does not allow the client to use the Software to provide to any other party, including unrelated and related third parties, a copy of the Software or of any part of the Software or any form of consulting, service bureau, time sharing services or services of any other kind.
   
   
3. Charges
   
   3.1 On the Effective Date the Client shall pay to Conserve the Licence Fee and the Set-Up Charge.
   
   3.2 The Client shall pay to Conserve the charge for the Support Service ("the Support Charge") which shall be an amount equal to 20 per cent of the Licence Fee. Unless otherwise agreed, the Support Charge shall be paid annually, the first payment being due on the Effective Date and each subsequent payment being due on each anniversary of the Effective Date.
   
   3.3 Conserve may increase the Support Charge with effect from each anniversary of the Effective Date by such percentage as is equal to the percentage increase over the preceding 12 months in the Retail Prices Index published for the month immediately preceding such anniversary date.
   
   3.4 All charges referred to in this clause 3 are exclusive of VAT and other taxes or duties.
   
   3.5 Any goods supplied by Conserve to the Client shall belong to the Client. Title in such goods shall pass to the Client upon payment of all sums due to Conserve at the time of supply of such goods.
   
   
4. Maintenance and Upgrades
   
   4.1 Conserve may from time to time offer to the Client upgrades to and enhancements of the Software free of charge.
   
   4.2 The Client is not required to use such upgrades for enhancements, but Conserve shall not be required to provide the Support Service except in respect of the current release level from time to time of the Software incorporating such upgrades and enhancements.
   
   4.3 Conserve shall, provided that the Maintenance Charge in respect of the period during which the Fault occurs has been paid, provide the following support to the Client:-
   
   4.3.1 telephone support between 0900 and 1700 hours Monday to Friday (excluding national holidays) to the Maintenance Contact;
   
   4.3.2 use reasonable endeavours to rectify by way of work-around or fix any Fault notified by the Client to Conserve within a reasonable time of the notification to Conserve of the Fault and provided that the Client has provided to Conserve such information as Conserve shall reasonably require in relation thereto. [ ? ]
   
   4.4 The Client agrees that it shall ensure that any user of the Software who requires support in relation thereto shall first contact the Maintenance Contact and the Maintenance Contact shall use reasonable endeavours to resolve the issue. No user of the Software nor any other person acting on behalf of the Client shall contact Conserve in relation to support other than the Maintenance Contact, notice of whose appointment shall from time to time be given to Conserve by the Client. There shall be no more than one Maintenance Contact from time to time other than with the prior written consent of Conserve.
   
   4.5 The support to be provided by Conserve to the Client in consideration of the Maintenance Charge shall not include support in relation to faults arising from:-
   
   4.5.1 improper use, operation or neglect of the Software;
   
   4.5.2 modification of the Software by or on behalf of the Client or any third party or its merger (in whole or in part) with any other software;
   
   4.5.3 use of the Software on equipment other than the Client's computer infrastructure which Conserve has agreed is suitable for the purposes of running the Software;
   
   4.5.4 failure by the Client to implement recommendations in respect of the Software or rectification of Faults previously supplied by Conserve;
   
   4.5.5 failure by the Client to install and use any new release of the Software;
   
   4.5.6 failure of any hardware, any network, cabling, peripheral or telecommunications equipment or the effect of lightning or any electrical fault;
   
   4.5.7 operation of the Software by individuals who had not received appropriate training and achieved the standard reasonably required by Conserve.
   
   
5. Intellectual Property Rights
   
   5.1 The Client acknowledges that any and all of the copyright and other intellectual property rights subsisting in or used in connection with the software and all documentation and manuals relating to the software are and shall remain the sole property of Conserve (or its third party licensors) and the Client shall acquire no rights whatsoever therein save as expressly provided in this agreement.
   
   5.2 The copyright and other intellectual property rights in data and material belonging to the Client and made available to Conserve pursuant to this agreement including (without limitation) data input onto databases belonging to Conserve by or on behalf of the Client shall remain the sole property of the Client.
   
   5.3 The Client undertakes that Conserve shall be given prompt notice of any claim made against the client arising from or relating to an allegation that the intellectual property rights of a third party are being infringed. Conserve shall have the right to defend any such claims and make settlements thereof at its own discretion and the client shall give such assistance as Conserve may reasonably require to settle or oppose any such claims.
   
   5.4 In the event that any such infringement occurs or may occur, the licensor may at its sole option and expense:
   
   i) procure for the Client the right to continue using the Software or infringing part thereof;
   
   ii) modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or
   
   iii) replace the Software or infringing part thereof by other Software of similar capability; or
   
   iv) repay to the Client any Set-Up Charge and Price paid by the Client in respect of the whole or the infringing part of the Software.
   
   
6. Warranties and Liability
   
   6.1 Conserve warrants that for a period of 90 days from the Effective Date the software will in all material respects confirm to and perform in accordance with the descriptions and specifications of the software made available to the Client by Conserve before the date of this agreement.
   
   6.2 Conserve warrants that it is the owner of, or has the necessary licences to, the Software.
   
   6.3 Conserve warrants that there are no disabling programs or devices in the software and that Conserve has used reasonable endeavours to ensure that the Software is free from viruses.
   
   6.4 Where Conserve supplies any goods supplied to Conserve by a third party, Conserve does not give any warranty, guarantee or other term as to the their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Conserve.
   
   6.5 The Client acknowledges that the Software cannot be and is not error free and free from viruses and agrees that the existence of such errors and viruses shall not constitute a breach of this agreement.
   
   6.6 Conserve shall not be liable to the Client for any indirect or consequential loss or damage which may arise from or in respect of the Software or its Use.
   
   6.7 Conserve shall not be liable to the Client for any loss of business, loss of profits, loss of anticipated savings, loss of reputation, loss of goodwill or business interruption or increase in bad debts arising out of or in connection with the software or its Use, whether or not Conserve had notice of the possibility of such loss.
   
   6.8 Conserve's entire liability in respect of all claims arising out of or in connection with this agreement or its subject matter in any 12 month period (considered retrospectively from the date on which the cause of action arose) shall not exceed £50,000.
   
   6.9 Notwithstanding any other term of this agreement, Conserve does not limit or exclude liability for death or personal injury arising from its negligence or the negligence of its employees, agents or authorised representatives.
   
   6.10 Except as expressly provided in this agreement, all conditions and warranties and terms of equivalent effect, whether express or implied (by statute or otherwise) are excluded to the fullest extent permitted by law.
   
   
7. Confidentiality
   
   7.1 Each party shall in respect of the other party's Confidential Information keep the Confidential Information in strictest confidence and not make any of the Confidential Information available to any third party and shall use the Confidential Information only for the purposes of this agreement and shall ensure that only those of its employees who need to have access to the Confidential Information shall have such access.
   
   7.2 The provisions of clause 7.1 shall not prevent the disclosure or use by a party of any information which, through no fault of that party, becomes public knowledge or to the extent permitted by law.
   
   
8. Compliance with Law
   
   8.1 Conserve and the Client shall at all times comply with all applicable laws, regulations and rules having equivalent effect which relate to the subject matter of this agreement.
   
   8.2 The Client acknowledges that the supply of the Software and the Use thereof is governed by statutes, regulatory requirements, codes of practice and guidelines relating to the use, provision and sharing of personal data and that the provisions thereof may change from time to time.
   
   
9. Force Majeure
   
   9.1 Neither party shall be liable to the other for any delay or non performance of its obligations under this agreement, other than obligations to pay money, arising from any cause beyond its reasonable control, including (without limitation) strikes and other forms of industrial action.
   
   
10. Termination
    
    10.1 Either party may terminate this agreement immediately by giving written notice to the other if that other commits any material breach of this agreement and such breach (where capable of remedy) is not remedied to the reasonable satisfaction of the non-defaulting party within 14 days of having received written notice specifying the breach and requiring its remedy.
    
    10.2 Either party may terminate this agreement immediately by written notice if:
    
    10.2.1 A resolution is passed or an order is made for winding up (save for the purpose of a bona fide reconstruction or amalgamation) or bankruptcy; or
    
    10.2.2 An administration order is made, or a receiver or administrative receiver is appointed, over any of its property or assets; or
    
    10.2.3 That party is dissolved or is insolvent or would be taken to be insolvent under section 123 of the Insolvency Act 1986.
    
    10.3 Upon the termination of this agreement for any reason whatsoever, the Client shall:
    
    10.3.1 Promptly return to Conserve or delete (as Conserve shall instruct) all copies of the Software and all other information and material supplied by Conserve to the Client; and
    
    10.3.2 Provide to Conserve a certificate signed by, or by a duly authorised officer on behalf of, the Client, certifying that the Client has complied with the provisions of this clause.
    
    10.4 Termination of this agreement shall not affect the rights of either party in relation to any antecedent breach nor any continuing obligations of either party.
    
    
11. Assignment
    
    11.1 Conserve shall be entitled to sub-contract the performance of any of its obligations under this agreement, provided that Conserve shall remain liable for the discharge of those obligations.
    
    11.2 The Client may not assign or otherwise transfer this agreement or any part of it without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
    
    
12. Waiver
    
    12.1 Failure to exercise, or delay in exercising, a right or remedy provided by this agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this agreement or of a default under this agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this agreement.
    
    
13. General
    
    13.1 No variation of this agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
    
    13.2 If any term or provision of this agreement (or any part of such term or provision) is found by any Court or administrative body to be invalid or unenforceable for any reason, such term or provision shall to that extent be deemed to be removed from and not form part of this agreement, but the validity and enforceability of the remainder of this agreement shall not be affected.
    
    13.3 This agreement (and the documents referred to in it) constitutes the entire agreement between the parties in respect of the subject matter of this agreement and supersedes all other agreements, statements, representations (save fraudulent) or warranties made by or between the parties or any of them concerning the same. No statements or representations made by either party have been relied upon by the other in agreeing to enter into this agreement.
    
    13.4 The headings in this agreement are included for convenience only and shall not affect the interpretation of this agreement.
    
    13.5 Any notice to be given by either party to the other under this agreement shall be deemed to have been received if left at or sent by first class post, facsimile or email transmission to the other party's address as set out in this agreement or any other address notified by the other party in accordance with this clause. Any such communication shall be deemed to have been received by the other party if sent by post, on the second day from the date of posting (and improving such service or delivery, it shall be sufficient to prove that such communication was properly addressed, stamped and put in the post) and if by facsimile or email transmission, at the time of transmission.
    
    13.6 This agreement shall be governed by and construed in accordance with English law and the parties irrecoverably agree to submit to the non-exclusive jurisdiction of the English courts.