AppScore EULA

September 2020 v1.03

 


 

PLEASE READ CAREFULLY BEFORE ACTIVATING ANY SOFTWARE LICENCE KEY PROVIDED FOR APPSCORE SOFTWARE:

 

This licence agreement (Licence) is a legal agreement between you and your Affiliates (Customer or you) and APPSCORE TECHNOLOGY LIMITED, incorporated and registered in England and Wales with company number 12049613 whose registered office is at Office 7, 35-37 Ludgate Hill, London, United Kingdom, EC4M 7JN (Vendor or we) for:

 

  • current release of AppScore computer software (Software); and
  • online or electronic documentation (Documentation).

 

The Vendor licenses use of the Software and Documentation to the Customer on the basis of this Licence. The Vendor does not sell the Software or Documents to the Customer. The Vendor remains the owner of the Software and Documentation at all times.

 

SYSTEM REQUIREMENTS: Customer shall ensure that its System is compatible with the Software and comply with all configurations and specifications described in the Documentation.

 

IMPORTANT NOTICE TO ALL USERS:

 

  • BY USING THE SOFTWARE PROVIDED TO YOU OR WHERE APPLICABLE LOADING THE LICENCE KEY PROVIDED TO YOU, YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU, YOUR AFFILIATES, YOUR EMPLOYEES AND ANY AUTHORISED THIRD PARTY USERS. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 7 AND CLAUSE 8.
  • IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENSE THE SOFTWARE AND DOCUMENTS TO YOU AND YOU MUST DISCONTINUE USE OF THE SOFTWARE NOW.

 

You should print a copy of this Licence for future reference.

 

This licence is dated as specified on the Commercial Terms Sheet (defined below).

 


 

AGREED TERMS

 

1. INTERPRETATION

 

1.1 The definitions and rules of interpretation in this clause apply in this Licence.

 

“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.

 

“Applicable Laws” means all applicable laws, legislation, regulations, statutes, statutory instruments, regulations, edicts, bye-laws or directions or guidance from government or governmental agencies which have the force of law whether local, national, international or otherwise existing from time to time.

 

“Authorised Reseller” means Vendor or the Vendor- authorized reseller, distributor or systems integrator from whom you acquired the Software.

 

“Authorised Third party Users” means any third parties whom the Vendor has authorised the Customer to share use of the Software in accordance with this Licence (such as clients of the Customer, where the Customer is a service provider) by referencing such persons (or categories of persons) in the Commercial Terms Sheet.

 

“Commercial Terms Sheet” means the schedule of commercial terms between the Vendor or Authorised Reseller and the Customer including the licence fee and payment terms, any Authorised Third Party Users, permitted territory within which the Software may be used, any country-specific terms that may apply in the jurisdiction of deployment, term of Licence and maximum number of server records that Customer may process using the instance of Software, and any permitted test use parameters agreed between the Customer and the Vendor or Authorised Reseller in relation to the Customer’s use of the Software under this Licence.

 

“Fee” means the licence fee payable by the Customer to the Vendor under Clause 4.

 

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and 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 Release” means release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

 

“New Version” means any new version of the Software which from time to time is publicly marketed and offered for purchase by the Vendor 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” means open-source software as defined by the Open Source Initiative (http” means //opensource.org) or the Free Software Foundation (http” means //www.fsf.org).

 

“System” means those systems of the Customer (or of any Authorised Third Party Users) in relation to which the Customer or Authorised Third Party User intends to or does actually use the Software.

 

“Software” means an instance of the latest current version of AppScore computer program or any New Version and any Maintenance Release which is acquired by the Customer during the subsistence of this Licence and in relation to which a software licence key is issued to the Customer by the Vendor.

 

“Specification” means the document detailing the specification of the Software which forms Annex A.

 

1.2. Holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

 

1.3. Clause, and Annex headings shall not affect the interpretation of this agreement.

 

1.4. Unless the context otherwise requires:

 

a) words in the singular shall include the plural and in the plural shall include the singular;

 

b) A reference to a statute or statutory provision is a reference to it as amended, extended or reenacted from time to time;

 

c) a reference to one gender shall include a reference to the other genders;

 

d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

1.5. If the Software is provided to a Customer or Authorised Third Party User in any country outside of the United Kingdom, then any country-specific terms in the Commercial Terms Sheet shall also apply. Despite Clause 1.5, in the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in the Commercial Terms Sheet, the provision contained in the Commercial Terms Sheet shall prevail, but only in respect of the Customer’s or the Authorised Third Party User use of the Software in that country.

 

1.6. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

 

1.7. References to clauses are to the clauses of this Licence.

 

1.8. The Commercial Terms Sheet and Annexes form part of this Licence and shall have effect as if set out in full in the body of this Licence. Any reference to this Licence includes the Commercial Terms Sheet and Annexes.

 

2. LICENCE

 

2.1. Subject to payment of the Fee and compliance with this Licence and the Commercial Terms Sheet , the Vendor grants to the Customer a non-exclusive licence for the term specified in the Commercial Terms Sheet commencing on and including the date of this Licence to use the Software in accordance with the usage limits specified in the Commercial Terms Sheet.

 

2.2. In relation to scope of use:

 

a) for the purposes of Clause 2.1, use of the Software shall be restricted to use of the Software in the form supplied by the Vendor or Authorised Reseller 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 or any Authorised Third Party User).

 

b) For the purposes of Clause 2.1, “use of the Software” means loading the software licence key or otherwise triggering one instance of the Software in relation to the Systems.

 

c) the Customer may not use the Software other than as specified in Clause 2.1 and Clause 2.2(a) without the prior written consent of the Vendor, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Vendor.

 

d) the Customer may make as many backup copies of the Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.

 

e) except as expressly stated in this Clause 2, 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.

 

f) the Customer shall (and shall procure that all Authorised Third Party Users shall) use the Software in accordance with all Applicable Laws.

 

2.3. The Customer may not use any such information provided by the Vendor or obtained by the Customer during any such reduction permitted under Clause 2.2(e) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

 

2.4. The Customer shall not:

 

a) sub-license, assign or novate the benefit or burden of this Licence in whole or in part;

 

b) allow the Software to become the subject of any charge, lien or encumbrance; and

 

c) deal in any other manner with any or all of its rights and obligations under this agreement,

 

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

 

2.5. The Customer shall on demand indemnify the Vendor against all claims, demands, actions, awards, judgments, settlements, costs, expenses, liabilities, damages and losses (including all fines, penalties management time ad legal and other professional costs and expenses) incurred by Vendor or any Affiliate as a result of any use of the Software by any Authorised Third Party that is unauthorised or otherwise than in accordance with Applicable Laws.

 

2.6. The Vendor 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.

 

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

 

2.8. Notwithstanding Clause 5, 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 2.8 shall be made until notice of the identity of the proposed assignee has been given to the other party.

 

2.9. The Customer shall:

 

a) ensure that the number of records held and processed using the Software does not exceed the limits specified in the Commercial Terms Sheet;

 

b) 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 Vendor on request from time to time;

 

c) notify the Vendor as soon as it becomes aware of any unauthorized use of the Software by any person;

 

d) pay, for broadening the scope of the licences granted under this Licence to cover the unauthorized use, an amount equal to the fees which the Vendor 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 4.3, from such date to the date of payment.

 

2.10. The Customer shall provide all such assistance and access as is reasonably required by the Vendor or its Authorised Reseller to audit the Customer's use of the Software in connection with this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence, provided that the Vendor or its Authorised Reseller provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

 

3. MAINTENANCE RELEASES AND NEW RELEASES

 

3.1. The Vendor will provide the Customer with all Maintenance Releases generally made available to its customers. The Vendor warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after they are made available to the Customer.

 

3.2. This Licence will entitle the Customer, subject to payment of the fees in accordance with Clause 4 and otherwise complying with its obligations under this Licence, to use a currently supported version of the Software currently available during the term of the licence (and the parties acknowledge and agree that this may constitute a New Version).

 

4. FEES

 

4.1. The Customer shall pay the Fees as specified in and in accordance with the Commercial Terms Sheet.

 

4.2. All sums payable under this Licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

 

4.3. If the Customer fails to make any payment due under this agreement by the due date for payment, then, without limiting the Vendor’s remedies under Clause 10, Vendor or Authorised Reseller may immediately suspend Customer’s use of the Software until any such payment is made in full. The Customer shall also pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

 

5. CONFIDENTIALITY AND PUBLICITY

 

5.1. Each party shall, during the term of this Licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

 

5.2. 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.

 

6. EXPORT

 

6.1. 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.

 

6.2. Each party undertakes:

 

a) 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

 

b) 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.

 

7. SUPPLIER’S WARRANTIES

 

7.1. The Vendor warrants that the Software code (excluding any Open Source Software) has been subjected to industry-standard virus, malware, malicious code and vulnerability checks prior to being entered into] the Vendor’s Software repository and the Software will conform in all material respects to the Specification while using the Software in accordance with this Licence and the Commercial Terms Sheet (provided the Customer is using the latest Maintenance Release and / or New Version made available to it by the Vendor (Warranty Period). If, within the Warranty Period, the Customer notifies the Vendor in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Vendor, or it has not been loaded onto Vendor-specified or suitably configured equipment, the Vendor shall, at the Vendor’s option, do one of the following:

 

a) repair the Software;

 

b) replace the Software; or

 

c) terminate this Licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

 

provided the Customer provides all the information that may be necessary to assist the Vendor in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Vendor to re-create the defect or fault.

 

7.2. The Vendor does not warrant that the use of the Software will be uninterrupted or error-free.

 

7.3. The Customer accepts responsibility for:

 

a) the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer;

 

b) selecting the content of any data inputted onto the Software;

 

c) determining the hosting arrangements and security of the Software and any data stored on it,

 

d) validating the results of any Software analysis of data inputted onto it by the Customer or any Authorised Third Party User; and

 

e) the outcome of any migration or transformation project undertaken in connection with use of the Software.

 

7.4. The Customer acknowledges that any Open-Source Software provided by the Vendor is provided “as is” and expressly subject to the disclaimer in Clause 7.5.

 

7.5. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence 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.

 

8. LIMITS OF LIABILITY

 

8.1. Except as expressly stated in Clause 8.2:

 

a) the Vendor 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:

 

(i) special damage even if the Vendor was aware of the circumstances in which such special damage could arise;

 

(ii) loss of profits;

 

(iii) loss of anticipated savings;

 

(iv) loss of business opportunity;

 

(v) loss of goodwill;

 

(vi) loss or corruption of data;

 

(vii) the scope of the Customer’s responsibility, as set out in Clause 7.3

 

provided that this Clause 8.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of Clause 8.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vii) inclusive of this Clause 8.1(a);

 

b) the total liability of the Vendor, whether in contract, tort (including negligence) or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and

 

c) the Customer agrees that, in entering into this Licence, 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 Licence or (if it did rely on any representations, whether written or oral, not expressly set out in this Licence) that it shall have no remedy in respect of such representations and (in either case) the Vendor shall have no liability in any circumstances otherwise than in accordance with the express terms of this Licence.

 

8.2. The exclusions in Clause 7.5 and Clause 8.1 shall apply to the fullest extent permissible at law, but the Vendor does not exclude liability for:

 

a) death or personal injury caused by the negligence of the Vendor, its officers, employees, contractors or agents;

 

b) fraud or fraudulent misrepresentation;

 

c) 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

 

d) any other liability which may not be excluded by law.

 

8.3. All dates supplied by the Vendor for the delivery of the Software shall be treated as approximate only. The Vendor shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

 

8.4. All references to “the Vendor” in this Clause 8 shall, for the purposes of this clause and Clause 17 only, be treated as including all employees, subcontractors and suppliers of the Vendor 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 Clause 17.

 

9. INTELLECTUAL PROPERTY RIGHTS

 

9.1. The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Vendor, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence.

 

9.2. The Vendor undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, Clause 9.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Licence, use of the Software in combination with any hardware or software not supplied or specified by the Vendor if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

 

9.3. If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Vendor’s obligations under Clause 9.2 are conditional on the Customer:

 

a) as soon as reasonably practicable, giving written notice of the Claim to the Vendor, specifying the nature of the Claim in reasonable detail;

 

b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Vendor (such consent not to be unreasonably conditioned, withheld or delayed);

 

c) giving the Vendor and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Vendor and its professional advisers to examine them and to take copies (at the Vendor’s expense) for the purpose of assessing the Claim; and

 

d) subject to the Vendor providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Vendor may reasonably request to avoid, dispute, compromise or defend the Claim.

 

9.4. If any Claim is made, or in the Vendor’s reasonable opinion is likely to be made, against the Customer, the Vendor may at its sole option and expense:

 

a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this Licence;

 

b) modify the Software so that it ceases to be infringing;

 

c) replace the Software with non-infringing software; or

 

d) terminate this Licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

 

provided that if the Vendor modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in Clause 9.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Licence been references to the date on which such modification or replacement was made.

 

9.5. Notwithstanding any other provision in this agreement, Clause 9.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.

 

9.6. This Clause 9 constitutes the Customer’s exclusive remedy and the Vendor’s only liability in respect of Claims and, for the avoidance of doubt, is subject to Clause 8.1.

 

10. DURATION AND TERMINATION

 

10.1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

 

a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

 

b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

 

c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;

 

d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

 

e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

 

f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

 

g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

 

h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

 

i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

 

j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 12.1(c) to Clause 12.1(i) (inclusive);

 

k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

 

10.2. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

 

10.3. 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.

 

10.4. On termination for any reason:

 

a) all rights granted to the Customer under this Licence shall cease;

 

b) the Customer shall cease all activities authorised by this Licence;

 

c) the Customer shall immediately pay to the Vendor any sums due to the Vendor under this Licence; and

 

d) the Customer shall immediately destroy or return to the Vendor (at the Vendor’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Vendor that it has done so.

 

10.5. Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement including Clause 1, Clause 5, Clause 6, Clause 7 (except Clause 7.1), Clause 8, Clause 10, and the Commercial Terms Sheet shall remain in full force and effect.

 

11. WAIVER

 

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

12. 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.

 

13. ENTIRE AGREEMENT

 

13.1. This licence, the Commercial Terms Sheet and the documents annexed as appendices to this Licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

 

13.2. Each party acknowledges that, in entering into this Licence and the documents 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 Licence or not) (Representation) other than as expressly set out in this Licence or those documents.

 

13.3. 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 Licence.

 

13.4. Nothing in this clause shall limit or exclude any liability for fraud.

 

14. VARIATION

 

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

 

15. SEVERANCE

 

15.1. 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.

 

15.2. If any provision or part-provision of this agreement is deemed deleted under Clause 15.1 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.

 

16. COUNTERPARTS

 

This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

 

17. THIRD-PARTY RIGHTS

 

17.1. 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.

 

18. NO PARTNERSHIP OR AGENCY

 

18.1. 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.

 

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

 

19. FORCE MAJEURE

 

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.

 

20. NOTICES

 

20.1. 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 other case).

 

20.2. Any notice shall be deemed to have been received:

 

a) if delivered by hand, on signature of a delivery receipt; or

 

b) 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 or at the time recorded by the delivery service.

 

20.3. 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.

 

21. GOVERNING LAW AND JURISDICTION

 

21.1. 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.

 

21.2. 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).

 

This Licence has been entered into on the date stated in the Commercial Terms Sheet.

 

ANNEX A

SPECIFICATION

 

The Software is installed ‘on-premises’ (i.e. is not hosted by the Vendor/is hosted by the Customer or Authorised Third Party User, as applicable) by the Customer and offers an analytics tool to assess Customer and Authorised Third Party User server and application data for trends with a view to aiding and speeding the Customer’s decision-making and end to end project management process regarding application cloud migration. The Software will act as a storage and processing database for any data inputted by the Customer and / or any Authorised Third Party User.

 

The effectiveness of the analytics tool is dependent on the comprehensiveness and accuracy of the Customer data which is inputted onto the database within the Software and the Customer and/or Authorised Third Party Users are expected to verify any resultant outputs for their suitability for use within the Customer’s specific environment.

 

The Software is not business-critical and may be used, gratis, for test purposes within the Customer’s System to the extent authorised to do so within the Commercial Terms Sheet or other communicated means.

 

ANNEX B

MAINTENANCE AGREEMENT

 

The Vendor or its Authorised Reseller will offer email support to Customer queries on the following basis:

 

Monday – Friday (excluding Bank Holidays in England) between 09:00 – 17:00 GMT (“Business Day”)

 

Email enquires can be sent to support@madefutureproof.com and will be acknowledged within four business hours of receipt (i.e. within a four hour period falling on a Business Day).