RIGHT TO CANCEL: If you are a consumer, i.e. if you are submitting the Registration Form for purposes outside your business, you would normally have a right to cancel under the Distance Selling Regulations within 7 clear business days after the contract is formed. However, you agree that VSN may provide you with a Licence Key within that period and that if VSN does so, you will not have that right to cancel. Should you exercise any right to cancel you must immediately return the software to VSN and destroy all copies of it.
VSN International Limited is a company registered in England. Company number 4027977 (official registered address: Wilkinson House, Jordan Hill, Oxford OX2 8DR); VAT number 750 0348 63. If you wish to contact VSN about this licence, please e-mail us at firstname.lastname@example.org or visit our web site at www.vsn-intl.com for our other contact details.
1.1 "The Acceptance Date" means the date on which the Licensee accepts or is deemed to have accepted the Software.
1.2 "This Agreement" means these terms and the Registration Form, as amended from time to time in accordance with clause 11.
1.3 "The Documentation" means the help facility included in the Software.
1.4 "An Error" means a material failure of the Software to provide the functions described in the Documentation.
1.5 "Intellectual Property Rights" means any patent, copyright, trade mark, trade name, service mark, registered design, design right (registered and unregistered), know-how, right of confidence, trade secret, right to extract or exploit data, database rights, any similar rights protected in any jurisdiction, whether now existing or coming into existence at some future date, any application for any of the above, and any accrued rights of action in respect of any of the above.
1.6 "The Licensee" means the Licensee named in the Registration Form.
1.7 "The Registration Form" means any form completed by the Licensee or its representative and submitted to VSN for the purposes of obtaining a licence key to operate the Software.
1.8 "The Software" means the software (in object code) provided by VSN to the Licensee, as modified and updated from time to time.
1.9 "The Start Date" means the date on which VSN provides the Licence Key to the Licensee.
1.10 "The Support Services" means the services described in clause 4.2.
1.11 "You" means the person submitting the Registration Form to VSN.
1.12 "Working Hours" means 9 am to 5 pm (London time) Mondays to Fridays, except bank, public or statutory holidays in England.
1.13 "Writing" includes text stored and transmitted electronically.
2. Licence - Number of Workstations and Users
2.1 The Licensee may use the Software on the terms set out in this Agreement. The licence is non-exclusive and non- transferable.
2.2 If a maximum number of workstations or users is specified in the Registration Form (which hereinafter includes any document or communication in writing in connection with the transaction to which this Agreement relates), the Software may only be used on up to that number of workstations or by up to that number of users at any one time. If the Licensee wants to increase that number of workstations or users, it must obtain an additional licence or extension of this licence from VSN. Any additional licence or extension may be subject to the Licensee paying additional licence fees and, where applicable, additional support fees.
2.3 If the Registration Form states that the licence is granted for a fixed period, the licence will, unless terminated earlier, automatically expire at the end of that period. If the Registration Form states that the licence is an annual licence, it will automatically renew on each anniversary of the Start Date until it is terminated by VSN or the Licensee giving the other at least 30 days' notice of termination to expire on any anniversary of the Start Date.
2.4 The licence will begin on the Start Date and unless it is terminated under clause 2.3, 3.3 or 7.2.6, it will continue until the termination of this Agreement under clause 8.1.
2.5 Only the Licensee and its employees may use the Software and then only for the Licensee's internal business purposes. The Licensee must not transfer the Software or share its use with anyone else. Nor may the Licensee use it for anyone else's benefit (including, without limitation, using it to provide bureau, outsourcing or application services or facilities management services). The Licensee may not sub-license the use of the Software.
2.6 The Licensee may not copy the Software except to make a reasonable number of back-up copies, and a back-up copy may be used only by substituting it for the original copy of the Software supplied to the Licensee, for testing the Software and its integration with other applications, and for testing and implementing the Licensee's disaster recovery or business contingency procedures. The Licensee must keep each back-up copy in a secure place, in the Licensee's possession, and under its control, at all times.
2.7 The Licensee must ensure that every copy of any of the Software bears the copyright and other proprietary notices on the original copy of the Software. The Licensee must not remove, obliterate or modify any of those notices.
2.8 The Licensee may not modify the Software, or combine it with, or incorporate it in, any other software. If anyone except VSN, or its agent, modifies the Software, VSN will be released from any obligation to provide any Support Services; and VSN will be entitled to raise, and the Licensee will pay, VSN's additional charges for any services VSN may provide in respect of the modified Software.
2.9 Except as permitted under the European Software Directive or any legislation implementing that Directive, the Licensee must not reverse engineer any of the Software to determine any design structure, concepts or methodology behind the Software, or to incorporate it in any other software or any product, or for any other purpose.
3.1 The Licensee will have 30 days following the Start Date to test the Software for Errors. If the Licensee discovers an Error, it must notify VSN of this before the end of that 30 day period, and give VSN a reasonable opportunity to correct the Error, and to re-supply the corrected Software. The Licensee will then have another 30 day period to repeat the Licensee's tests on the Software. If after a period of 90 days after the Start Date, VSN has not been able to correct the Errors notified to it, the Licensee may, by giving VSN notice, reject the Software. If the Licensee rejects the Software, the licence fees paid by the Licensee under this Agreement will be refunded.
3.2 If the Licensee has not notified VSN of any Error within the initial or (if applicable) any subsequent 30 day period, the Licensee will be deemed to have accepted the Software. If the Licensee begins live or production use of the Software, that is if the Licensee uses it for any purpose except for testing it, the Licensee will be deemed to have accepted the Software.
3.3 VSN's refund of any licence fees under clause 3.1 will be in full and final settlement of any liability VSN may have to the Licensee (under this Agreement or under any other agreement in connection with the licensing, supply, development, implementation, configuration, support or maintenance of the Software) and will automatically terminate the Licensee's right to use the Software and this Agreement.
4. Support Services
4.1 If the Registration Form states that Support Services will be provided then, for so long as the Licensee pays all support fees due to VSN, VSN will provide the Support Services until the expiry of not less than 30 days' notice from VSN or the Licensee to the other, to the effect that Support Services will no longer be supplied or be required, or (if earlier) the termination of this Agreement. Any notice given under this clause must expire on an anniversary of the Start Date.
4.2 The Support Services are:
4.2.1 the provision during Working Hours of a help desk for the purpose of advising the Licensee in relation to problems encountered in using the Software;
4.2.2 the provision of any Error corrections to the Software issued by VSN from time to time; and
4.2.3 the provision of any updates to the Software issued by VSN to its licensees generally, subject to any restrictions or limitations on the Support Services notified by VSN to the Licensee from time to time.
5.1 Subject to clause 5.2, the Licensee will pay VSN licence fees for the Software calculated by reference to the details on the Registration Form and VSN's rates and charges in force at the Start Date and if the Registration Form states that Support Services are to be provided, the Licensee will pay VSN support fees calculated by reference to the details in the Registration Form and VSN's rates and charges in force at the Start Date.
5.2 VSN may revise any annual licence fees and any support fees with effect from any anniversary of the Start Date by giving the Licensee not less than 30 days' notice. As from the expiry of that notice, the Licensee will pay VSN those revised fees.
5.3 The Licensee will reimburse VSN for all travel, subsistence and other expenses incurred by its employees or contractors in providing the Software or any services to the Licensee.
5.4 All fees and charges payable under this Agreement are exclusive of any value added, sales or other taxes on the supply to the Licensee of any goods or services. The Licensee will pay these in addition to the licence fees, support fees and other charges payable under this Agreement.
5.5 The Licensee will pay VSN all fees and charges payable under this Agreement within 30 days after the date of VSN's invoice. VSN may, without prejudice to any other right or remedy, terminate this Agreement, or suspend work under it if, within 14 days after receiving written notice of the Licensee's failure to pay in accordance with the terms of this clause, the Licensee still fails to make those payments in full.
5.6 The Licensee will pay VSN, on demand, interest calculated on a daily basis on all sums not paid within 30 days after the date of VSN's invoice at the rate of 8% per annum above Barclays Bank's base rate in force from time to time in England. The Licensee will also pay VSN's reasonable expenses (on an indemnity basis) in connection with the Licensee's failure to pay any fees or charges when due, including (but not limited to) legal expenses and the costs of collection.
6.1 VSN warrants to the Licensee that VSN is the owner of the Intellectual Property Rights in the Software or that it has the right to license the Licensee to use the Software.
6.2 VSN warrants to the Licensee that the Software, as delivered by VSN to the Licensee, will, for 90 days after the Start Date, function substantially in accordance with the Documentation when properly used on the equipment and operating system specified in the Registration Form.
6.3 Provided the Licensee provides a copy of its data and anything else needed to reconstruct the problem, VSN will investigate any purported breach of warranty reported by the Licensee in writing within the period specified in clause 6.2 and, where appropriate, VSN will endeavour to correct any Error within a reasonable time, or to provide avoidance or remedial information, or VSN will refund the licence fee paid by the Licensee for the Software.
6.4 VSN's refund of any licence fees under clause 6.3 will be in full and final settlement of any liability VSN may have to the Licensee (under this Agreement or under any other agreement in connection with the licensing, supply, development, implementation, configuration, support or maintenance of the Software) and will automatically terminate the licence.
6.5 VSN will not be liable under any warranty or any other provision of this Agreement to the extent that any failure of the Software to comply with any warranty, or to the extent that any error, defect, bug or deficiency in the Software, or VSN's failure to correct or delay in correcting it, results from the Licensee not having complied with its obligations under this Agreement, or from any other act or omission on the Licensee's part, or on the part of any third party. In particular, VSN will not be liable if any modification has been made to any of the Software by anyone except VSN.
6.6 VSN will not be liable under any warranty or under any other provision of this Agreement to the extent that any loss or damage is caused by the Licensee's failure to implement, or the Licensee's delay in implementing, any upgrade, update, new release, revision, version or modification of the Software which would have remedied or mitigated the effects of any error, defect, bug or deficiency.
6.7 When notifying VSN of an Error the Licensee must provide a documented example of it and all other information and materials needed to reproduce it including, without limitation, an example of where and when the Error occurred and a listing of the related input and output and a written explanation of the Error.
6.8 Because of the nature of software, VSN does not warrant that the Software will be error free or that it will run without interruption, or that every error, defect, bug or deficiency can be or will be corrected.
6.9 VSN warrants to the Licensee that VSN will use reasonable skill and care in the performance of this Agreement.
6.10 The Licensee acknowledges that proper use of the Software is dependent on the Licensee and its staff exercising proper skill and care in inputting data into the Software and interpreting the output provided by the Software. VSN will not be liable for the consequences of decisions taken by the Licensee on the basis of that output.
6.11 The express undertakings and warranties given by VSN in this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations on the part of VSN implied by statute, common law, custom, trade usage, course of dealing or in any other way. All of these are, to the extent permitted by law, excluded.
6.12 The Licensee warrants that it has not been induced to enter into this Agreement by any representation or by any warranty (whether oral, or in writing) except those specifically set out in this Agreement as warranties. The Licensee waives all claims for breach of any warranty and all claims for any misrepresentation, (negligent or of any other kind, unless made by VSN fraudulently) which is not specifically set out in this Agreement as a warranty.
7. Intellectual Property Rights
7.1 The Licensee acknowledges that all Intellectual Property Rights in the Software, as between the Licensee and VSN, are and will remain VSN's property or that of VSN's licensors and that VSN may license others to use them.
7.2 Subject to clause 13 below, VSN will indemnify the Licensee in respect of any damages and costs awarded against the Licensee by a court of competent jurisdiction on the grounds that the Software as VSN supplied it to the Licensee infringes the copyright of any third party, provided that:
7.2.1 the Licensee immediately notifies VSN of each and every claim that the Software infringes any Intellectual Property Rights;
7.2.2 the Licensee makes no admission or in any other way prejudices VSN's defence or settlement of any such claim;
7.2.3 the Licensee gives VSN complete control of the defence and settlement of each claim and all reasonable assistance with its defence and settlement;
7.2.4 the claim does not arise out of the Licensee's act or omission, or that of any third party, or any other circumstances outside VSN's control;
7.2.5 the Licensee takes all reasonable steps to minimise the damages and costs which the court might award against it or VSN in relation to the Licensee's use of the Software; and
7.2.6 VSN may, at its option: modify the Software; or procure for the Licensee the right to continue to use the Software; or replace the Software; or terminate this Agreement and the licence and refund a proportion of the licence fees paid by the Licensee. That proportion will be calculated on the basis that the licence fees are pro-rated evenly over 3 years (or if the licence fees are paid annually, 1 year) beginning on the Start Date (or in the case of annual licence fees, an anniversary of that date) and that the refund will reflect the proportion of that period left to run as at termination under this clause.
7.3 Clause 7.2 sets out all of VSN's liabilities and obligations and all of the Licensee's remedies in relation to the Software infringing any Intellectual Property Rights and in relation to any breach of the warranty in clause 6.1.
8.1 Either party may terminate this Agreement immediately on giving notice in writing to the other if:
8.1.1 the other commits any material breach of this Agreement and (in the case of a breach which is capable of being remedied) it has failed to remedy it, within 30 days after receiving notice requiring it to remedy the breach; or
8.1.2 the other has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets, or it passes a resolution for winding-up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if it becomes subject to an administration order, or if it enters into any voluntary arrangement with its creditors, or if any similar process to any of the above is begun in any jurisdiction, or if it ceases or threatens to cease to carry on business.
8.2 VSN may suspend its performance of this Agreement if any of the circumstances mentioned in clause 8.1 above arises in relation to the Licensee. That suspension will not prejudice VSN's right later to terminate this Agreement, either for the same or for a different reason.
8.3 On the termination of this Agreement (however it happens), the Licensee's right to use the Software will immediately and automatically terminate, the Licensee will immediately return to VSN all copies of the Software in the Licensee's possession or control, the Licensee will immediately erase all copies of it from any computer system in its possession or control, and the Licensee will certify to VSN in writing that this has been done.
8.4 Any termination of this Agreement (however it happens) will not affect any accrued rights or liabilities of either party, nor will it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into or to continue in force on or after termination.
8.5 On the termination of this Agreement the Licensee will immediately pay VSN for all work done before termination and for all expenses VSN has incurred or has agreed to incur in connection with any work done or to be done for the Licensee.
8.6 Clauses 3.3, 5.5, 5.6, 6.4, 6.5, 6.6, 6.8, 6.10, 6.11, 6.12, 7.1, 7.3, 8.3, 8.4, 8.5, 8.6, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 will survive the termination of this Agreement and continue indefinitely.
9.1 VSN will keep confidential, and not use for any purpose except providing the Software and services to the Licensee, any confidential information which the Licensee discloses to VSN relating to the Licensee's business or its clients and their affairs.
9.2 The Licensee will keep confidential, and not use for any purpose except exercising its rights under this Agreement, the Software, any information relating to the Software, and any information about VSN's business, its financial affairs, its methodologies, strategies, plans, technology or its clients. The Licensee will notify VSN immediately if the Licensee becomes aware of any unauthorised use of any of that information or of the Software by anyone. The Licensee will allow VSN at any time to check that the Licensee's use of the Software is in accordance with this Agreement and, for that purpose, the Licensee irrevocably licenses VSN, its employees and its agents, to enter any of the Licensee's premises.
9.3 The Licensee will not, without first obtaining VSN's written consent, disclose any of the Software or any information protected by clause 9.2 to anyone except:
9.3.1 the Licensee's employees, and then only to those employees who need to know or to have access to them in order to use the Software in accordance with this Agreement; or
9.3.2 the Licensee's auditors, HM Inspector of Taxes, HM Customs & Excise and any other person having a right, duty or obligation to know the Licensee's business, but then only in pursuance of that right, duty or obligation.
9.4 The Licensee will ensure that the people mentioned in clause 9.3 are made aware, before the disclosure to them of any of the Software or any information protected by clause 9.2, that it is confidential and that they owe a duty of confidence to VSN. The Licensee will indemnify VSN against all loss and damage which VSN may sustain or incur as a result of the Licensee or its employees, or anyone who has access to any of the Software or any information protected by clause 9.2 through the Licensee failing to comply with the provisions of this clause 9.
9.5 The Licensee will immediately notify VSN if the Licensee becomes aware of any breach of confidence by anyone to whom the Licensee discloses the Software or any of the information protected by clause 9.2, and the Licensee will give VSN all assistance reasonably required by VSN in connection with any action or proceedings which VSN may institute against that person for breach of confidence.
9.6 The Licensee will effect and maintain adequate security measures to safeguard the Software and information protected by clause 9.2 from access or use by any unauthorised person, will retain them and all copies of them under the Licensee's possession and control, will keep a full and accurate record of the Licensee's copying and disclosure of them, and will produce that record to VSN from time to time on demand.
9.7 The provisions of clauses 9.1 and 9.2 do not apply to any information which is in or comes into the public domain unless as a result of a breach of clause 9.1 or 9.2.
10. The Licensee's Information and Facilities
The Licensee will provide VSN, free of charge, with all information, materials, documentation, resources and facilities reasonably requested by VSN to enable VSN to perform this Agreement. The Licensee will ensure that its staff, contractors and other suppliers co-operate fully with VSN and cause no delay. Where VSN requests the Licensee to provide information or to take a decision, the Licensee will do so promptly and so as not to cause any delay.
11. Entire Agreement & Amendments
This Agreement supersedes all earlier agreements, arrangements and understandings between the parties in respect of its subject matter, and constitutes the complete agreement between them relating to that subject matter. No addition to, or modification of, any provision of this Agreement will be binding on either party unless recorded in writing and signed by a duly authorised representative of each of them.
All notices given by VSN under this Agreement will be in writing and be sent to the contact address, e-mail address or fax number of the Licensee set out in the Registration Form or any other address, e-mail address or fax number which the Licensee may designate by notice given to VSN in accordance with this clause 12. Any notice given by the Licensee under this Agreement must be in writing and sent to VSN's registered office, or contact e-mail address or fax number given in this Agreement, or any other address, e-mail address or fax number which VSN may designate by notice given to the Licensee in accordance with this clause 12. Any notice may be delivered personally, or by first class pre-paid letter, or by fax, or by e-mail and will be deemed to have been served: if by hand, when delivered; if by first class post, 48 hours after posting; if by fax, when despatched, provided the sender holds written confirmation automatically produced by the sender's fax machine of error free and complete transmission of that fax to the intended recipient's fax number, and if by e-mail, on that e-mail being accessible by the intended recipient.
13. Limitations and Exclusions of Liability
13.1 VSN's total liability in connection with the Software and its performance or non-performance of this Agreement, whether in contract, or tort (including negligence) or arising in any other way, will not exceed the licence fees paid by the Licensee at the time the claim is made.
13.2 Despite anything else contained in this Agreement (except clause 13.5), VSN will not be liable to the Licensee for any loss of profits, loss of savings, loss of use, loss of business, loss of opportunity, loss or spoiling of data, loss of contracts, in any case whether direct or indirect, or for any indirect or consequential loss, whether arising from negligence, or breach of contract, or in any other way, even if VSN had been advised of, or knew of, the likelihood of that loss or type of loss arising.
13.3 Because of the uncertainty of future events and circumstances VSN does not guarantee that its forecasts, projections, advice, recommendations or the contents of any report, presentation or other document will be achievable, and the Licensee acknowledges that VSN gives the same to address specific circumstances at the time. All information which VSN supplies is supplied in good faith, but the accuracy and completeness of any information obtained from, or based on, information obtained from the Licensee or any third party is not warranted by VSN. It is not within the scope of VSN's obligations to enquire as to, or to verify, the accuracy or completeness of that information.
13.4 The Licensee acknowledges that the above limitations of and exclusions on VSN's liability are reasonable in the light of VSN's insurance arrangements and that VSN is willing to accept a higher limitation on its liability provided it is able to obtain full insurance cover for its liabilities and the Licensee pays the costs of obtaining and maintaining any increased cover.
13.5 Nothing in this Agreement limits or excludes VSN's liability for death or personal injury caused by its negligence or for fraud, or affects any of the Licensee's statutory rights as a consumer.
13.6 The Software has been developed for use with the operating system specified in the Registration Form. VSN will not be liable for any failure to operate with any other operating system or for any degradation in performance or reduction in functionality caused by the use of the Software with any other operating system.
14.1 Despite anything else contained in this Agreement, VSN will not be liable for any delay in performing or failure to perform its obligations caused by circumstances beyond its control (including, without limitation, any act or omission on the Licensee's part or on the part of any third party, and any bug, defect, error, fault or deficiency in any software or data not provided by VSN or developed by or on behalf of the Licensee, or in any equipment), and VSN will be granted a reasonable extension of time for the performance of its obligations.
14.2 VSN will endeavour to comply with any timetable, project plan or dates which it has given to the Licensee for the performance of this Agreement but they are estimates only, and VSN will not be liable for any delay or failure to supply or perform in accordance with that timetable or project plan, or those dates.
The Licensee may not assign, or transfer, or sub-contract this Agreement or any of its rights or obligations under it, whether in whole or in part, without first obtaining VSN's written consent.
If any part of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder of this Agreement will not be affected.
No forbearance or delay by either party in enforcing its rights will prejudice or restrict those rights. No waiver of any right will operate as a waiver of any later right or breach. No right, power or remedy conferred on, or reserved to, either party is exclusive of any other right, power or remedy available to it, and each of those rights, powers, and remedies is cumulative.
The headings in this Agreement are solely for convenience and do not affect the interpretation, construction or terms of this Agreement.
This Agreement and its validity are governed by, and this Agreement is to be construed in accordance with, the laws of England. The Licensee agrees to submit to the jurisdiction of the English Courts or any other courts of VSN's choosing. Where the Licensee is outside the jurisdiction of the English Courts, the Licensee's address for service in England is set out in the Registration Form.
20. Partnership and Third Parties
20.1 Nothing in this Agreement creates, evidences or implies any partnership or joint venture between the parties, or the relationship between them of principal and agent.
20.2 No third party is entitled to the benefit of this Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.