This licence and support agreement (Licence) is a legal agreement between you (Licensee or you) and Capewell Data Solutions Limited (Licensor, us or we) for:
We license use of the Software and Document to you on the basis of this Licence. We do not sell the Software or Documents to you. We remain the owners of the Software and Documents at all times.
You should print a copy of this Licence for future reference.
|1||GRANT AND SCOPE OF LICENCE|
|1.1||In consideration of ongoing payment by you of the agreed subscription fees and you agreeing to abide by the terms of this Licence, we hereby grant to you a non-exclusive, non-transferable licence to use the Software and the Documents in the UK on the terms of this Licence.|
|1.2||You may use the Software for your internal business purposes only and such use shall be subject to any maximum number of concurrent users as stipulated in the plan type that you order, as further described in your customer area on our website|
|Except as expressly set out in this Licence or as permitted by any local law, you undertake:
|3||INTELLECTUAL PROPERTY RIGHTS|
|3.1||You acknowledge that all intellectual property rights in the Software and the Documents anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documents other than the right to use them in accordance with the terms of this Licence.|
|3.2||You acknowledge that you have no right to have access to the Software in source code form.|
|4.1||In this clause the following terms have the following meanings:
“Customer Cause” means any of the following causes:
“Fault” means any failure of the Software to operate in all material respects in accordance with the Documents.
“Help Desk Support” means any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software.
“Out-of-scope Services” means any services provided by us in connection with any apparent problem regarding the Software reasonably determined by us not to have been caused by a Fault, but rather by a Customer Cause or a cause outside our control (including any investigational work resulting in such a determination).
“Service Levels” means the service level responses and response times referred to in the Service Level Table.
“Service Level Table” means the table set out in clause 4.11.
“Solution” means either of the following outcomes:
“Support Hours” means 9am-5pm Monday to Friday, excluding UK public holidays.
“Support Period” means the period during which you continue to pay the subscription fees for the Software and Support Services.
“Support Request” means a request made by you in accordance with this clause for support in relation to the Software, including correction of a Fault.
“Support Services” means the maintenance of the then-current version or release of the Software, including Help Desk Support but excluding any Out-of-scope Services.
|4.2||We will prioritise all Support Requests based on a reasonable assessment of the severity level of the problem reported.|
|4.3||During the Support Period we shall use reasonable endeavours to perform the Support Services during the Support Hours in accordance with the Service Levels.|
|4.4||As part of the Support Services, we shall:
|4.5||We may reasonably determine that any services are Out-of-scope Services. If we make any such determination, we shall promptly notify the Licensee of that determination.|
|4.6||The Licensee acknowledges that the Licensor is not obliged to provide Out-of-scope Services.|
|4.7||The Licensee may request Support Services by way of a Support Request.|
|4.8||Each Support Request shall include a description of the problem and a start time of the incident.|
|4.10||The Licensee shall provide the Licensor with:
|4.11||Service level table:|
|Severity level of Fault||Definition||Service Level response and response time|
|1||Business Critical Failures: An error in, or failure of, the Software that:
||The Licensor shall work on the problem continuously and aims to implement a Solution within two – six Support Hours of receipt of the Support Request.
If the Licensor delivers a Solution by way of a workaround reasonably acceptable to the Licensee, the severity level assessment shall reduce to a severity level 2 or lower.
|2||System Defect with Workaround:
||The Licensor aims, within one – two Business Days after the receipt of the Support Request, to provide a fault correction.|
An isolated or minor error in the Software that:
|The Licensor aims to provide a permanent Fault correction within two – three Business Days after the receipt of the Support Request.|
|5.1||We will use our reasonable endeavours to ensure that the Software is available at all times subject to any pre-planned maintenance work. We will provide you with 7 days’ notice in writing of any planned maintenance work on the Software.|
|6.1||You shall own all rights, title and interest in and to all of the data inputted into the information fields of the Software (“Customer Data”) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.|
|6.2||In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.|
|6.3||If we process any personal data on your behalf when performing our obligations under this agreement, the parties record their intention that you shall be the data controller and we shall be a data processor and in any such case:
|7||LIMITATION OF LIABILITY|
|7.1||You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documents meet your requirements.|
|7.2||We only supply the Software and Documents for internal use by your business, and you agree not to use the Software or Documents for any re-sale purposes.|
|7.3||We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:
|7.4||Other than the losses set out in condition 7.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 6 months’ subscription fees. This maximum cap does not apply to condition 7.5.|
|7.5||Nothing in this Licence shall limit or exclude our liability for:
|7.6||This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software, the Documents and the Support Services. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software, the Documents and the Support Services which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.|
|8.1||We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so. If you cease payment of your subscription fees this will be treated as an irremediable material breach of this Licence pursuant to this clause entitling us to terminate this Licence immediately.|
|8.2||You may terminate this Licence at any time by providing notice in writing to us.|
|8.3||We may terminate this Licence on notice in writing to you at the end of any subscription period that we agree with you.|
|8.4||Upon termination for any reason:
|9||COMMUNICATIONS BETWEEN US|
|9.1||Any notice given by you to us, or by us to you, will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.|
|10||OTHER IMPORTANT TERMS|
|10.1||We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.|
|10.2||You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.|
|10.3||This Licence and any document expressly referred to in it constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence or any document expressly referred to in it. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this in this Licence or any document expressly referred to in it.|
|10.4||This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.|