Licence & Support Agreement

PLEASE READ CAREFULLY BEFORE SUBSCRIBING TO ANY SOFTWARE FROM THIS WEBSITE:

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:

  • The computer software and any associated media which you access from our website (Software); and
  • any printed materials or online documents related to the Software which we make available to you (Documents);
  • the delivery of our support service to you.

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.

IMPORTANT NOTICE TO ALL USERS:

  • BY SUBSCRIBING FOR THE SOFTWARE FROM THIS WEBSITE YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CONDITION 5.

  • 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 THE ORDERING PROCESS NOW. IN THIS CASE YOU MAY NOT ACCESS OR USE ANY SOFTWARE, SERVICES OR DOCUMENTS FROM THIS WEBSITE.

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
2 RESTRICTIONS
Except as expressly set out in this Licence or as permitted by any local law, you undertake:

  1. not to copy the Software or Documents except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
  2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documents;
  3. not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
  4. not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

    1. is used only for the purpose of achieving inter-operability of the Software with another software program; and
    2. is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
    3. is not used to create any software which is substantially similar to the Software;

  5. to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
  6. to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;
  7. to include our copyright notice on all entire and partial copies you make of the Software on any medium; and
  8. not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than your employees without prior written consent from us; and
  9. not to use the Software via any communications network or by means of remote access.
  10. to comply with all applicable technology control or export laws and regulations.
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 SUPPORT
4.1 In this clause the following terms have the following meanings:

“Customer Cause” means any of the following causes:

  1. any improper use, misuse or unauthorised alteration of the Software by the Licensee;
  2. any use of the Software by the Licensee in a manner inconsistent with the then-current Documents;
  3. the use by the Licensee of any hardware or software not provided by us or approved by us for use by the Licensee in connection with the Software; or
  4. the use of a non-current version or release of the Software

“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:

  1. correction of a Fault; or
  2. a workaround in relation to a Fault (including a reversal of any changes to the Software if deemed appropriate by us) that is reasonably acceptable to the Licensee.


“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:

  1. provide Help Desk Support by means of the following telephone number 44-(0)121-794-2211 and e-mail address support@capewelldata.com;
  2. provide access to our support website at: www.support.capewelldata.com where a support ticket can be generated.
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:

  1. prompt notice of any Faults; and
  2. such output and other data, documents, information, assistance and (subject to compliance with all Licensee's security and encryption requirements notified to the Licensor in writing) remote access to the Licensee’s system, as are reasonably necessary to assist the Licensor to reproduce operating conditions similar to those present when the Licensee detected the relevant Fault and to respond to the relevant Support Request.
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:
  1. materially impacts the operations of the Customer's business or marketability of its service or product;
  2. prevents necessary work from being done; or
  3. disables major functions of the Software from being performed.
 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:
  1. a critical error in the Software for which a work- around exists; or
  2. b. A non-critical error in the Software that affects the operations of the Licensee’s business or marketability of its service or product.
 The Licensor aims, within one – two Business Days after the receipt of the Support Request, to provide a fault correction.
3 Minor Error:
An isolated or minor error in the Software that:
  1. does not significantly affect Software functionality;
  2. may disable only certain non-essential functions; or
  3. Does not materially impact the Licensee’s business performance
 The Licensor aims to provide a permanent Fault correction within two – three Business Days after the receipt of the Support Request.
5 HOSTING
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 CUSTOMER DATA
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:

  1. you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with this agreement on your behalf;
  2. we shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by you from time to time; and
  3. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. We will comply with the Security Policy set out on our website.
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:

  1. loss of profits, sales, business, or revenue;
  2. business interruption;
  3. loss of anticipated savings;
  4. loss or corruption of data or information;
  5. loss of business opportunity, goodwill or reputation; or
  6. any indirect or consequential loss or damage.
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:

  1. death or personal injury resulting from our negligence;
  2. fraud or fraudulent misrepresentation;
  3. any other liability that cannot be excluded or limited by English law.
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 TERMINATION
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:

  1. all rights granted to you under this Licence shall cease with effect from the end of any subscription period which you have paid for;
  2. you must immediately cease all activities authorised by this Licence with effect from the end of any subscription period which you have paid for; and
  3. you must immediately pay to us any sums due to us. If you terminate this agreement pursuant to clause 8.2 then any subscription fees already paid shall be non-refundable unless you terminate the Licence in the first 14 days in line with our Refund Policy as notified on our website; and
  4. you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software and Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
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.

Get in touch. Ask a question.

If you have any questions about our applications or would like to chat with one of our staff then call 0121 794 2277 or email info@capewelldata.com.
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