CommerceXchange Terms of Licence
1.1 In this Agreement the following expressions have the meanings stated, unless the context otherwise requires:
"Additional Charges" means the charges at the Company's rates from time to time for work undertaken on a time and materials basis;
"Agreement" means these CommerceXchange Terms of Licence and where applicable, the CommerceXchange Software Licence Agreement and the CommerceXchange Service Level Agreement.
"Business Hours" means any hour during the hours of 9.00am and 5.00pm in the UK from Monday to Friday (excluding bank and other local public holidays);
"Company" - Commercexchange Ltd
"Client" - the company Licencing the Standard Licensed Programs
"Customer" - The Client's customers using the Standard Licensed Programs
"Data" means all information or data supplied to the Company or input into or to be used together with the Standard Licensed Programs including any subsequent changes or updates made or authorized by the Client;
"Data Processing Agreement" means the addendum to these Terms found at Data Processing Agreement;
"Effective Date" means the date on which this Agreement shall commence, which shall be the date the Client commences paid use of the Standard Licensed Programs following the Trail Period;
'Licence' the right to use the Software subject to the terms set out in this document.
"Licence Fee" means the fee for the licence and the Services set out in the CommerceXchange Software Licence Agreement, being the same may be varied in accordance with clause 3.3 below;
"Client Specific Licensed Programs" means the software programs in object code identified in the Program Specifications in addition to the Client Specific Software Licence Agreement and Service Level Agreement;
"Licensed Program Materials" means the Standard Licensed Programs and the Program Documentation;
"New Release" means any improved, modified or corrected version of any of the Standard Licensed Programs or Program Documentation from time to time issued by the Company;
"Program Documentation" means the online instruction/support guides and videos and other documentation in respect of the Standard Licensed Programs;
"Program Specifications" means the technical specifications from time to time published by the Company in respect of the Standard Licensed Programs and as provided to the Client during the trial period prior to the Effective Date;
"Software Licence Agreement" means the terms and conditions entitled " Software Licence Agreement" agreed between the Company and the Client, determined by the scope of the "Client Specific Licensed Programs" purchased by the Client.
"Service Level Agreement" means the terms and conditions entitled "Service Level Agreement" agreed between the Company and the Client, determined by the level of support purchased by the Client.
"Services" means the Licemce Program Materials and Technical Support as set out herein and in the Service Level Agreement;
"Specified Equipment" means any computer system comprising a PC with a minimum of 128MB RAM and at least a 1 GHz processor, either a dial-up 56 Kbps, ISDN 64 Kbps, ISDN 128 Kbps or faster Internet connection, an operating system that supports 1024*768 resolution (Windows 2000 and higher) and Microsoft Internet Explorer version 5.0 or higher;
"Standard Licensed Programs" means the software programs in object code identified in the Program Specifications, including any New Release of the same;
"Technical Support" means the provision of such categories of technical support in accordance with clause 5 below as specified in respect of each of the Standard Licensed Programs and in the CommerceXchange Software Licence Agreement;
"Trail Period" - The Client is provided with access to the Standard Licensed Programs for a trial period to ensure that the Licensed Program Materials meet its requirements prior to the Effective Date;
"Use" means to access and permit access to the Standard Licensed Programs online or (where in machine readable form) the Program Documentation using the Specified Equipment for the processing of the instructions contained in the Standard Licensed Programs or (as the case may be) the Program Documentation and including for the purposes of accessing and using the Data;
"Variation" means any change, modification, alteration or addition to or omission from the Licensed Program Materials or the Services or any part thereof.
2 GRANT OF LICENCE AND PROVISION OF SERVICES
2.1 The Company in consideration of the payment by the Client from time to time of the Licence Fee in accordance with clause 3 below hereby:
2.1.1 grants to the Client a non-exclusive, non-transferable licence to Use the Standard Licensed Programs (and where appropriate the Program Documentation) for the purposes of facilitating online sales of products and services between the Client and its Customers, typically called an ecommerce and/or eprocurment solution; and
2.2 All New Releases provided to the Client pursuant to and in accordance with this Agreement shall be deemed to be licensed to the Client pursuant to the terms and conditions of this Agreement.
3 LICENCE FEE
3.1 The Licence Fee shall include the cost of:
3.1.1 provision of web access to the Licensed Program and any New Release thereof using a specific username and passcode; and
3.1.2 supply by the Company to the Clients of the Program Documentation
3.2 The Services fee shall include the cost of the Company providing the Services.
3.3 The Licence Fee (together with any applicable tax payable thereon) shall be levied by the Company on the basis set out in the Schedule and shall be payable by the Client within thirty (30) days of receipt of the Company's invoice for the same (except for any payment due on the date of signing this Agreement which shall be payable on or prior to signing).
3.4 The Company shall be entitled to vary the Licence Fee not more than once in every successive period of twelve (12) months during the term of this Agreement upon giving not less than thirty (30) days' notice thereof to the Customer.
3.5 A surcharge of five percent (5%) will be due on all late payments.
4.1 The Company shall use all reasonable endeavours to provide the Client with web access to the Standard Licensed Programs and the Program Documentation for a Trial Period as soon as is possible following the Client's request.
4.1.1 The Trial Period is intended solely for the Client to internally evaluate that the Licensed Program Materials meet its requirements prior to the Effective Date. The Client is not entitled to place and transact orders, using the Licensed Program Materials, with Customers during the Trial Period.
4.2 The Client shall confirm that the Standard Licensed Programs and the Program Documentation meet its requirements upon completion of the Trial Period and prior to the Effective Date
4.3 The Client will commence Licence of the Standard Licensed Programs and the Program Documentation on the Effective Date
5. DATA PROTECTION
5.1 Each Party undertakes to comply with its obligations under relevant applicable Data Protection Laws and the Data Processing Agreement
5.2 The Client is the data controller and the company is the data processor in respect of any personal data that the Company processes in the course of providing Services. Personal data is derived from data provided by the Customer in setting up their account on the Standard Licensed Programs or by the Client setting up the account on the Customer's behalf and is not checked or monitored by the Company. The Company has no liability or responsibility whatsoever howsoever arising directly or indirectly to the Client for the accuracy, content or use of such personal data under this clause 4.2, provided that such use is in accordance with the instructions of the Client and the Company's obligations set out in these Terms.
5.3 The Client shall:
5.3.1 ensure that it is appropriately registered with any applicable data protection authority;
5.3.2 take appropriate organisational and technical measures against unauthorised or unlawful processing;
5.3.3 obtain where appropriate express, specific and informed consent when obtaining personal data from data subjects by:
18.104.22.168 For Customer accounts on the Standard Licensed Programs, set up by the Client on the Customer's behalf - By the Client keeping full records of the Customers consent/opt-in/opt-out choices.
6 TECHNICAL SUPPORT
6.1 With effect from the Effective Date and for the duration of this Agreement the Company shall provide in respect of each of the Standard Licensed Programs the following Technical Support during Business Hours, in the following order of priority:
6.1.1 Online line Support guides and videos - www.commercexchange.com/help
6.1.2 Online chat - www.commercexchange.com/help and from the Client Administration Account
6.2.3 Online support ticket system - http://www.commercexchange.com/support
6.2.4 Email - to email@example.com
6.2.5 Telephone - +44 (0)1784 770677
7.1 The Client may by written notice to the Company request that a Variation be made.
7.2 If the Company receives a Variation request from the Client the Company:
7.2.1 will undertake, at its cost, a preliminary examination of the Variation requested and will use its reasonable endeavours to notify the Client within thirty (30) calendar days of the estimated cost, time implications and technical feasibility of implementing the Variation; and
7.2.2 shall inform the Client if it feels that any Variation is inconsistent with, inappropriate for or detrimental to the Standard Licensed Programs.
7.3 Within fifteen (15) days from receipt by the Client of the Company's response to a Variation request, the Client shall notify the Company as to whether it agrees to proceed with the Variation on the basis identified by the Company.
7.4 To the extent that the parties agree to a Variation, they shall first jointly agree in writing to the costs and timeframes required.
7.5 In the event that a Variation has been agreed to in writing by the parties, such Variation will become a part of this Agreement and subject to the terms and conditions contained in it.
8 PROPERTY AND CONFIDENTIALITY IN THE LICENSED PROGRAM MATERIALS
8.1 The Licensed Program Materials contain confidential information of the Company and all copyright, trademarks and other intellectual property rights in the Licensed Program Materials are the exclusive property of the Company. The Client acknowledges and agrees that nothing in this Agreement shall transfer or convey to the Client any right, title or interest in or to the Licensed Program Materials or to the intellectual property rights therein. All right, title and interest in and to the Licensed Program Materials and the intellectual property rights therein are vested in and shall remain the property of the Company. All ideas, concepts, methods, know-how and techniques related to the Licensed Program Materials shall remain the exclusive property of the Company. The Client agrees not to claim or contest the title or ownership of the Company in or to the Licensed Program Materials or the intellectual property rights therein.
8.2 The Customer shall:
8.2.1 keep confidential the table structure embodied within the Licensed Program Materials and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the Use of the Standard Licensed Programs (and where appropriate the Program Documentation;
8.2.3 notify the Company immediately if the Client becomes aware of any unauthorised use of the whole or any part of the Standard Licensed Programs by any third party; and
8.2.4 without prejudice to the foregoing, take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Company in the Licensed Program Materials.
8.3 The Client shall inform all relevant employees, agents and sub-contractors that the table structure embodied within the Standard Licensed Programs constitutes confidential information of the Company and that all intellectual property rights therein are the property of the Company and the Client shall take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 7.
8.4 The access to the Standard Licensed Programs granted herein is effective until terminated as hereinafter set forth. The Company may terminate the licence granted and require the Client to cease use of the Standard Licensed Programs if the Client is in breach of any of the terms and conditions of the licence granted herein provided the Company provides a minimum of 30 days' notice in writing.
9.1 Subject to the exceptions set out in clause 8.3 below and the limitations upon its liability in clause 9 below the Company warrants that:
9.1.1 its title to the Licensed Program Materials is free and unencumbered and that it has the right, power and authority to licence the same upon the terms and conditions of this Agreement;
9.1.2 the Standard Licensed Programs will conform to the Program Specifications. In the event that the Standard Licensed Programs do not conform to the Program Specifications, the Company shall use reasonable endeavours to correct any such fault;
9.1.3 it will perform the Services with reasonable care and skill; and
9.2 The Client shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty.
9.3 The Company shall have no liability to remedy a breach of warranty where such breach arises as a result of any fault or breach of the Client
9.4 Without prejudice to the foregoing, the Company does not warrant that the Use of the Standard Licensed Programs will meet the Customer's data processing requirements or that the operation of the Standard Licensed Programs (including where in machine-readable form the Program Documentation) will be uninterrupted or error fee.
10 LIMITATION OF LIABILITY
10.1 The following provisions set out the Company's entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Client in respect of:
10.1.1 any breach of its contractual obligations arising under this Agreement; and
10.1.2 any representation, statement or tortuous act or omission including negligence (but excluding any of the same made fraudulently) arising under or in connection with this Agreement
10.2 The Company's sole obligation and liability, and the Customer's sole remedy in all situations involving the performance or non-performance of a Licensed Program, or any part thereof, shall be, at the Company's option the repair, correction or replacement of the Licensed Program or said part within the terms of the agreement.
10.3 Any act or omission on the part of the Company or its employees, agents or sub-contractors falling within clause 9.1 above shall for the purposes of this clause 9 be known as an "Event of Default".
10.4 Subject to the limits set out in clause 9.5 below the Company shall accept liability to the Client in respect or damage to the tangible property of the Client resulting from the negligence of the Company or its employees, agents or sub-contractors.
10.5 The Company's entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the aggregate of the Licence Fee paid in the immediately preceding period of twelve (12) months.
10.6 The Company shall not be liable to the Client in respect of any Event of Default for loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Client incurring the same.
10.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
10.8 The Client hereby agrees to afford the Company not less than thirty (30) days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.
10.9 The Company shall have no liability to the Client in respect of any Event of Default unless the Client shall have served notice of the same upon the Company within two (2) years of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
10.10 Nothing in this clause shall confer any right or remedy upon the Client to which it would not otherwise be legally entitled.
11 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
11.1 The Company will indemnify and hold harmless the Client against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation or Use of the Standard Licensed Programs by the Client infringes the patent, copyright, registered design or trade mark rights of said third party (an "Intellectual Property Infringement") provided that the Customer:
11.1.1 gives notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same;
11.1.2 gives the Company the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Company; and
11.1.3 acts in accordance with the reasonable instructions of the Company and gives to the Company such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and provision of all relevant documents.
11.2 The Company shall reimburse the Client its reasonable costs incurred in complying with the provisions of clause 10.1 above.
11.3 The Company shall have no liability to the Client in respect of an Intellectual Property Infringement if the same results from any breach of the Customer's obligations under this Agreement.
11.4 In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to:
11.4.1 procure the right for the Client to continue using the Licensed Program Materials; or
11.4.2 make such alterations, modifications or adjustments to the Licensed Program Materials so that they become non-infringing without incurring a material diminution in performance or function; or
11.4.3 replace the Licensed Program Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
11.4.4 If the Company in its reasonable judgment is not able to exercise any of the options set out at clause 10.4.1, 10.4.2 or 10.4.3 above within ninety (90) days of the date it received notice of the Intellectual Property Infringement then the Client without prejudice to any other rights or remedies it may have hereunder or at law shall be entitled to terminate this agreement by thirty (30) days' notice upon the Company. Upon any such termination the provisions of clause 15.3 below (but not 15.4) shall apply.
12.1 Each of the parties hereto undertakes to the other to keep confidential all information (where the same is in written form and is clearly marked as being confidential) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:
12.1.2 already in its possession other than as a result of a breach of this clause; or
12.1.3 in the public domain other than as a result of a breach of this clause.
12.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 11.1 above by its employees, agents and sub-contractors.
13.1 Training for the Standard Licensed Programs is provided in the form of online videos, tutorials and support guides, which can be found at www.commercexchange.com/help
13.2 Any additional training services requested by the Client shall be provided by the Company in return for Additional Charges.
14 DURATION OF AGREEMENT
14.1 Unless terminated in accordance with the provisions of clause 15 below, or separately agreed in the Software Licence Agreement , this Agreement will take effect from the Effective Date and continue for one (1) years (herein referred to as the "Initial Period" and shall thereafter be deemed renewed for further subsequent terms of one (1) years (herein referred to as the "Renewal Period") unless terminated by either party giving the other party not less than thirty (30) days written notice, prior to the expiry of the then current term, of its intention not to renew the Initial Term or any Renewal Term of this Agreement. This Agreement may be re-negotiated within the last three (3) months of each one (1) year term.
15.1 The Client shall communicate to the Company upon the Effective Date the identity of the person(s) or the department within its undertaking at the Site who shall act as the sole contact point and channel of communication for the provision by the Company of the Services during the currency of this Agreement. The Client shall forthwith inform the Company of any change in the identity of any such person(s) or department.
16.1 This Agreement may be terminated:
16.1.1 forthwith by either party if the other commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty (30) days of a written request to remedy the same;
16.1.2 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
16.2 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force on or after such termination.
16.3 Subject to clause 15.4 below within seven (7) days of the termination of this Agreement (howsoever and by whomsoever occasioned) the Client shall at the Company's sole option either return all copies of the Standard Licensed Programs in its possession or control or shall destroy all copies of the Licensed Program Materials in its possession or control and a duly authorised officer of the Client shall certify in writing to the Company that the Client has complied with its obligation as aforesaid.
16.4 Notwithstanding the provisions of clause 15.3 above, the Company shall, on request and at a charge to be agreed with the Company, provide the Client with a back-up copy, for archival purposes only, in such form as may be agreed with the Company, of the Data which has been input into the Standard Licensed Programs provided that the Client agrees not to disclose to any third party or attempt to assign, transfer, sell, lease, rent, charge or otherwise deal in the table structure embodied within the Standard Licensed Programs or any part of the same. If the Client uses any of the Standard Licensed Programs other than for archival purposes it shall forthwith become liable to pay the Company its then current charges for the use of the Standard Licensed Programs or any equivalent software then licensed in substitution for the Standard Licensed Programs.
16.5 Should this Agreement not be renewed at the end of either the Initial Period (as is defined in clause 13.1) or any subsequent Renewal Period (as is defined in clause 13.1), the Client can request the Company to deliver, at an extra charge, to the Client the Data in such format as will be agreed.
16.6 No refund or repayment of or deduction from the Licence Fee shall be made in the event this Agreement is terminated by the Client for any reason.
17 FORCE MAJEURE
17.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), terrorist attack, insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an "Event of Force Majeure").
17.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
17.3 If a default due to an Event of Force Majeure shall continue for more than twelve (12) weeks then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
18.1 The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
19.1 Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class post or by facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within twelve (12) hours) to the address or to the facsimile number of the other party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of forty eight (48) hours after posting and (if sent by facsimile transmission) upon the expiration of twelve (12) hours after dispatch.
Notices to the Company:
Address: Rourke House,
Watermans Business Park,
Notices to the Customer:
Shall be sent to the Representative specified in Clause 14 .
20 INVALIDITY AND SEVERABILITY
20.1 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
21 ENTIRE AGREEMENT
21.1 The Company shall not be liable to the Client for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements or undertakings confirmed by a duly authorised representative of the Company in writing or expressly incorporated or referred to in this Agreement.
21.2 The Client accepts that the Licensed Program Materials were not designed and produced to its individual requirements and that it was responsible for their selection.
21.3 Nothing in this Agreement is intended to exclude a party's liability for fraud or fraudulent concealment.
22.1 The Company shall be entitled to vary the terms of this Agreement provided that:
22.1.1 the terms shall not be amended to the commercial disadvantage of the Customer; and
22.1.2 the Company shall give the Client 30 days' notice in advance of any such changes and shall consult with the Client as to the effect of such changes should the Client request such consultation in writing.
23.1 This Agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.
24 ASSIGNMENT AND SUB-LICENSING
24.1 The Client shall not be entitled to assign or otherwise transfer this Agreement nor any of its rights or obligations hereunder nor sub license the use (in whole or in part) of the Licensed Program Materials without the prior written consent of the Company.
25.1 Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of tax and any tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable.
26.1 Headings to clauses in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
27.1 This Agreement shall be governed by and construed in accordance with the laws in force in the United Kingdom.
27.2 All disputes and differences whatsoever arising out of or in connection with this Agreement or the construction or application of this Agreement (or any part of it) shall be referred to a single independent arbitrator to be agreed upon in writing by the parties within thirty (30) days after a written request for such appointment is given to the other party by either of the parties.
27.3 The arbitration shall take place in the UK and shall be construed in the English language.
27.4 The costs of arbitration proceedings which shall be incurred by or on behalf of the arbitrator and any independent experts and advisors instructed by the arbitrator(s) in connection with the arbitration, including but not limited to all fees and expenses of the arbitrator himself shall be apportioned and paid by the parties upon the basis of the apportionment of fault which the arbitrator shall have indicated in his award and such of the parties as is thus found to be at fault hereby undertakes irrevocably to indemnify the other party fully and effectively forthwith upon demand against such costs.
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