Software licence and support agreement
PARTIES
1. Inspired Training Solutions Ltd, a company incorporated in England and Wales (registration number 12860636) having its registered office at Suite A, 82 James Carter Road, Mildenhall, Suffolk, IP28 7DE (the “Licensor“); and
2. You, the customer (the “Licensee“).
AGREEMENT
1. Definitions
1.1 In this Agreement, except to the extent expressly provided otherwise:
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
“Charges” means:
(a) the amounts specified during the purchase of the Software Licence Agreement;
(b) such other amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the standard time-based charging rates of the Licensor (as notified by the Licensor to the Licensee before the date of this Agreement) by the time spent by the personnel of the Licensor performing the Services (rounded down by the Licensor to the nearest quarter hour);
“Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee;
“Effective Date” means the date of execution of this Agreement, being the date of purchase for the software licence;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Licensor provides to the Licensee, or has an obligation to provide to the Licensee, under this Agreement;
“Software” means the software that a Software Licence Subscription has been purchased for;
“Software Defect” means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Licensee or any person authorised by the Licensee to use the Software;
(b) any use of the Software contrary to the Documentation by the Licensee or any person authorised by the Licensee to use the Software;
(c) a failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
“Software Licence Subscription” means the period during which an active and valid licence exists between the Licensor and Licensee for the Software;
“Software Specification” means the specification for the Software set out in the Documentation, as it may be varied by the written agreement of the parties from time to time;
“Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise; and
“Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2.
2. Term
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force until the cancellation of the Software Licence Subscription, upon which this Agreement shall terminate automatically, subject to termination in accordance with Clause 14 or any other provision of this Agreement.
3. Supply of Software
3.1 The Licensor shall make the Software available for download by the Licensee during the whole term of the Software Licence Subscription, commencing on the Effective Date, and shall provide to the Licensee such assistance in relation to the download of the Software as the Licensee may reasonably request.
4. Licence
4.1 All plugins are licensed under the GNU general public license (https://www.gnu.org/licenses/gpl.html) version 2.0 or later.
5. Support Services
5.1 The Licensor shall provide the Support Services to the Licensee during the Term.
5.2 The Licensor shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor’s industry.
5.3 The Licensor may suspend the provision of the Support Services if any amount due to be paid by the Licensee to the Licensor under this Agreement is overdue, and the Licensor has given to the Licensee at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
5.4 The Licensor may terminate the Support Services by giving to the Licensee at least 30 days’ written notice.
5.5 If the Support Services are terminated in accordance with the provisions of this Clause 5:
(a) the Licensee must pay to the Licensor any outstanding Charges in respect of Support Services provided to the Licensee before the termination of the Support Services;
(b) the Licensor must refund to the Licensee any Charges paid by the Licensee to the Licensor in respect of Support Services that were to be provided to the Licensee after the termination of the Support Services; and
(c) the provisions of this Clause 5, excluding this Clause 5.5, shall cease to apply, but the other provisions of this Agreement will continue notwithstanding such termination.
6. Licensee obligations
6.1 Save to the extent that the parties have agreed otherwise in writing, the Licensee must provide to the Licensor, or procure for the Licensor, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits,
as are reasonably necessary to enable the Licensor to perform its obligations under this Agreement.
6.2 The Licensee must provide to the Licensor, or procure for the Licensor, such access to the Licensee’s computer hardware, software, networks and systems as may be reasonably required by the Licensor to enable the Licensor to perform its obligations under this Agreement.
7. No assignment of Intellectual Property Rights
7.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.
8. Charges
8.1 The Licensee shall pay the Charges to the Licensor in accordance with this Agreement.
8.2 If the Charges are based in whole or part upon the time spent by the Licensor performing the Services, the Licensor must obtain the Licensee’s written consent before performing Services that result in any estimate of time-based Charges given to the Licensee being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Licensee agrees otherwise in writing, the Licensee shall not be liable to pay to the Licensor any Charges in respect of Services performed in breach of this Clause 8.2.
8.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.
8.4 The Licensor may elect to vary any element of the Charges by giving to the Licensee not less than 30 days’ written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall constitute a percentage increase in the relevant element of the Charges that exceeds 2% over the percentage increase, since the date of the most recent variation of the relevant element of the Charges under this Clause 8.4 (or, if no such variation has occurred, since the date of execution of this Agreement), in the Retail Prices Index (all items) published by the UK Office for National Statistics.
9. Payments
9.1 The Licensor shall issue invoices for the Charges to the Licensee from time to time during the Term.
9.2 The Licensee must pay the Charges to the Licensor within the period of 30 days following the receipt of an invoice issued in accordance with this Clause 9.
9.3 The Licensee must pay the Charges by debit card or credit card (using such payment details as are notified by the Licensor to the Licensee from time to time).
9.4 If the Licensee does not pay any amount properly due to the Licensor under this Agreement, the Licensor may:
(a) charge the Licensee interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Licensee pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10. Warranties
10.1 The Licensor warrants to the Licensee that:
(a) the Licensor has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Licensor will comply with all applicable legal and regulatory requirements applying to the exercise of the Licensor’s rights and the fulfilment of the Licensor’s obligations under this Agreement; and
(c) the Licensor has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
10.2 The Licensor warrants to the Licensee that:
(a) the Software as provided will conform in all material respects with the Software Specification;
(b) the Software will be supplied free from Software Defects and will remain free from Software Defects for a period of at least 12 months following the supply of the Software;
(c) the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(d) the Software shall incorporate security features reflecting the requirements of good industry practice.
10.3 The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
10.4 The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
10.5 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or
(b) procure for the Licensee the right to use the Software in accordance with this Agreement.
10.6 The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
10.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
11. Acknowledgements and warranty limitations
11.1 The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
11.2 The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.
11.3 The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
11.4 The Licensee acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.
12. Limitations and exclusions of liability
12.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
12.2 The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this Agreement:
(a) are subject to Clause 12.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
12.3 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
12.4 Neither party shall be liable to the other party in respect of any loss of revenue or income.
12.5 Neither party shall be liable to the other party in respect of any loss of use or production.
12.6 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
12.7 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
12.8 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
13. Force Majeure Event
13.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
13.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
13.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
14. Termination
14.1 The Licensor may terminate this Agreement by giving to the Licensee not less than 30 days’ written notice of termination, expiring at the end of any calendar month.
14.2 The Licensee may terminate this Agreement by giving to the Licensor not less than 30 days’ written notice of termination, expiring at the end of any calendar month.
14.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of this Agreement, and the breach is not remediable;
(b) the other party commits a breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
14.4 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
14.5 The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:
(a) any amount due to be paid by the Licensee to the Licensor under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Licensor has given to the Licensee at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 14.5.
15. Effects of termination
15.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 9.2, 9.4, 12, 15, 17 and 18.
15.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
15.3 Within 30 days following the termination of this Agreement for any reason:
(a) the Licensee must pay to the Licensor any Charges in respect of Services provided to the Licensee before the termination of this Agreement and in respect of licences in effect before the termination of this Agreement; and
(b) the Licensor must refund to the Licensee any Charges paid by the Licensee to the Licensor in respect of Services that were to be (but are not) provided to the Licensee after the termination of this Agreement and in respect of licences that were to be (but are not) in effect after the termination of this Agreement,
without prejudice to the parties’ other legal rights.
16. Notices
16.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out on our website:
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
17. General
17.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
17.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
17.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
17.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
17.6 Subject to Clause 12.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
17.7 This Agreement shall be governed by and construed in accordance with English law.
17.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
18. Interpretation
18.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
18.2 The Clause headings do not affect the interpretation of this Agreement.
18.3 References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
18.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.