Terms and Conditions
1.0 DEFINITIONS
1.1 “CSLI” means CSL Investors Limited, incorporated in the British Virgin Islands with registered office situated at Mill Mall, Suite 6, Wickhams Cay 1, PO Box 3085, Road Town, Tortola, British Virgin Islands.
1.2 “Cover Period” means standard business hours for the country in which the Licensee is based excluding local statutory or public holidays;
1.3 “Designated Equipment” means the Licensee’s designated users and file/database server computer(s);
1.4 “Effective Date” means the date of installation (not go live) as specified overleaf;
1.5 “Location” means the address detailed overleaf or such other address as may have been notified to CSLI from time to time;
1.6 “Licence” means the licence to use the software components named in Annex 1 overleaf, which is granted to the Licensee under Clause 2;
1.7 “Licence Fee”, “Subscription” both mean the monthly non-refundable charge made for the Licence and related subscription services, which is based upon a multiple of the deployed instances of the software components and the number of Named Databases to be accessed, as detailed in Annex 1 overleaf.
1.8 “Component” means the functionality accessible in the CSLI Programs.
1.9 “Named Database” means any single database or data file being accessed and or used by the licensee in any manner whatsoever with a CSLI component and or any other file associated to such a component which CSLI has a proprietary interest that is installed on the licensee’s designated equipment, regardless of whether the individual is actively accessing the program or files at any given time.
1.10 “Programs” means the CSLI computer programs, in machine-readable form only, named in Annex 1 overleaf;
1.11 “Related Documentation” means the user manuals for the Programs;
1.12 “Subscription Services” means the services described at Clause 12;
1.13 “Subscription Services Contract” means the agreement entered into by CSLI and the Licensee in respect of Subscription Services which consists of the terms and conditions set out at Clause 12;
1.14 “System” means the Designated Equipment and the Programs.
2.0 LICENCE
2.1. CSLI hereby grants to the Licensee a perpetual non-exclusive and non-transferable Licence to use the Programs from the Effective Date specified in Annex 1 overleaf, for use by up to but not exceeding the number of Components and Named Databases specified in Annex 1 so long as the agreed monthly License Fee is paid.
2.2. The Licence may be terminated (without there arising any right on the part of the Licensee to a refund of all or part of the Licence Fee):
2.2.1. by the Licensee on 90 days written notice to CSLI;
2.2.2. by CSLI on 30 days written notice to the Licensee if the Licensee is in serious or persistent breach of the Licence and has not remedied that breach within 30 days of being requested by CSLI to do so;
2.2.3. by CSLI immediately if the Licensee has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (other than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets or generally becomes unable to pay its debts within the meaning of S123 of the Insolvency Act 1986 or an event occurs within the jurisdiction local to the Licensee which has the same or similar effect to the above.
3.0 GENERAL CONDITIONS
3.1. The property in the media upon which the Programs are supplied shall remain with CSLI.
3.2. The Licensee shall be entitled to use the Programs and any Related Documentation for its own business purposes only. The program may not be used for commercial time sharing, rental or any software service whatsoever.
3.3. The Licensee shall not be entitled to assign or otherwise transfer its rights and duties under the Licence or to sub-licence the Programs to anyone else.
3.4. The Licensee may not permit the Programs and Related Documentation to go out of its possession at any time without the prior permission of CSLI.
3.5 This Licence is restricted to the named Components and the number of Named Databases to be access by each Component. In the event of an increase in the number of Named Databases that need to be access by the Components and or the addition of another installation of the Components then a new licence is required and the Licensee shall inform in writing CSLI or the local agent thereof within 30 days of the details of any such change.
3.6. Upon the termination of the Licence for any reason whatsoever the Licensee must return the Programs and Related Documentation to CSLI or alternatively, as CSLI shall in its sole discretion decide, return the documentation to CSLI and provide CSLI with satisfactory evidence that the Programs have been permanently deleted from the System.
4.0 WARRANTY
4.1. CSLI shall correct or replace any Programs which do not perform in accordance with the Related Documentation, provided that CSLI has received notification of the defect within 90 days of the Effective Date. The warranty does not cover:
4.1.1. the Licensee’s failure to check whether the Programs meet its requirements and, in particular, whether the reports produced by the Programs are accurate and meet current, local legislative requirements;
4.1.2. failure of the Programs to provide facilities or functions not included in the Related Documentation;
4.1.3. defects caused by unauthorised changes to the Programs or failure to operate the Programs in accordance with the Related Documentation or inadequately trained or unauthorised people operating the Programs.
4.2. If CSLI cannot fix the defect under Clause 4.1, CSLI’s liability for that failure is limited to either refunding the Licence Fee or providing the Licensee with a replacement copy of the Program, as CSLI in its sole discretion chooses. If CSLI refunds the Licence Fee, the Licensee must return the original Program and Related Documentation to CSLI. If CSLI replaces the Program, the Licensee need return the original Program only.
4.3. The warranty under Clause 4 is in place of any condition or warranty of any kind whatsoever, express or implied, statutory or otherwise, concerning the quality or fitness for any particular purpose of the Programs.
5.0 ALTERATIONS TO PROGRAMS
5.1. The Licensee shall not make any changes to the Programs or the Related Documentation without having first obtained the written consent of CSLI. If the Licensee does make changes to the Programs or Related Documentation, CSLI shall not be liable for any error caused by those changes or by the Licensee’s misuse of the Programs or Related Documentation.
5.2. CSLI may, in its sole discretion, modify the Programs to meet a Licensee’s particular business requirements but a condition of agreeing to do so shall be that Licensee must agree in writing and without charge to allow CSLI to release that modification to other Licensees if it so chooses. All modification services shall be additionally chargeable.
6.0 FEES
6.1. The Licence Fee shall be payable by the Licensee as set out overleaf. If any sum payable by the Licensee is not paid by the due date, CSLI shall have the right to charge interest on that sum on a daily basis from the due date until the date of payment at the annual rate of 3% above the prevailing base rate of London Interbank rate per annum.
6.2. The Licence Fee and any Charge for Software Maintenance are exclusive of VAT or any other applicable sales taxes which shall be additionally payable by the Licensee at the rate and in the manner prescribed by law. If, under any applicable law, the Licensee is required to withhold tax on any sums payable under this agreement, that sum shall be automatically increased to offset such tax so that the amount actually remitted to CSLI equals the amount due. Where, as a matter of law, the Licensee cannot do this, the Licensee must provide CSLI with all documentary evidence needed by CSLI to claim tax relief from the appropriate taxing authority in respect of that withholding tax including, without limitation, any notice of assessment, voucher, form or statement completed by the Licensee showing the amount of the withholding tax and the related tax receipts.
7.0 INTELLECTUAL PROPERTY RIGHTS
7.1. CSLI owns the copyright and all other intellectual property rights in the Programs (including any copies made by the Licensee) and Related Documentation.
7.2. CSLI shall indemnify the Licensee against any liability, loss, damage, costs and expenses which the Licensee may incur or suffer as a result of any claim brought against the Licensee by a third party claiming infringement of its intellectual property rights as a result of the use of the Programs or Related Documentation by the Licensee provided that:
7.2.1. the Licensee gives written notice to CSLI of any claims or proceedings immediately following receipt of them;
7.2.2 the Licensee makes no admission of liability and gives CSLI sole authority to defend or settle the claims or proceedings at CSLI’s expense, providing CSLI keeps the Licensee notified of the proceedings;
7.2.3. the Licensee gives CSLI all reasonable help in connection with the claims or proceedings at CSLI’s expense;
7.2.4. the claim has not arisen as a result of the Licensee using or combining the Programs with any other programs or materials or equipment other than the Designated Equipment;
7.3. In dealing with any claim for infringement of a third party’s intellectual property rights, CSLI may at its own expense and option:
7.3.1. pay for the right to continue using the Programs and Related Documentation;
7.3.2. make any changes to the Programs or Related Documentation without materially reducing the functionality of the Programs;
7.3.3. refund the Licence Fee.
7.4. This Clause 7 states CSLI’s entire liability to the Licensee in respect of the infringement of the intellectual property rights of any third party.
8.0 CONFIDENTIALITY
8.1. The Licensee must keep the Programs and the Related Documentation confidential and not disclose them to any third party without the prior written consent of CSLI. CSLI and the Licensee shall also keep confidential all information (written or oral) 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 except for that which is already in its possession other than as a result of a breach of this clause, or is in the public domain other than as a result of a breach of this clause.
8.2. The Licensee shall be entitled to disclose the Programs and Related Documentation to those of its employees or students who are directly involved in their use but shall ensure that they too comply with these duties of confidentiality.
9.0 LIMIT OF LIABILITY
9.1. It is the Licensee’s responsibility to take proper back-up copies of its data. CSLI shall not be liable for any loss or damage which could have been avoided or remedied had the Licensee taken proper back up copies of its data.
9.2. CSLI shall not be liable in any way for loss of data or data corruption caused by the incorrect inputting or storage of that data. Nor shall CSLI be liable for any loss or damage caused by the Programs’ inability to process data (or resulting reports) in the way required by local statutory requirements. It is the Licensee’s responsibility, in accordance with Clause 4.1.1, to check that the data is being processed in the required way and that the resultant reports are accurate.
9.3. CSLI does not exclude or restrict liability for death or personal injury caused by the negligence of CSLI or its employees.
9.4. CSLI shall not be liable for any consequential or indirect loss or damage which is suffered by the Licensee including (without this being an exhaustive list) loss of profits, loss of contracts, loss of data or programs, loss of operation or production, loss of anticipated savings and loss of use of any equipment, however it is caused.
9.5. Subject to Clauses 9.1 – 9.4, CSLI’s total liability to the Licensee for direct loss or damage, whether in contract, tort or otherwise arising out of or in connection with the supply of the Programs or the Related Documentation is limited to the amount of the Licence Fee.
10.0 CONTINUING OBLIGATIONS
10.1. Clauses 3.5, 7, 8 and 9 shall survive the termination of the Licence for whatever reason.
11.0 FORCE MAJEURE
11.1. Neither CSLI or the Licensee will be liable to the other for any delay in or failure to perform its obligations in whole or in part under this agreement (other than the payment of money) as a result of any cause beyond its reasonable control.
12.0 SUBSCRIPTION AND SUPPORT SERVICES
12.1. If the Licensee requires CSLI to provide Software Support, it must first complete the basic training. CSLI may also agree to provide the Licensee with additional training e.g. on site training and implementation of support services. This service shall be additionally chargeable.
12.2. In consideration of the Licensee having completed the training and the monthly payment by the Licensee to CSLI of the Licence Fee (which CSLI shall be entitled to vary by 15% but not more than once in each year), CSLI shall provide the Licensee with Subscription services and support for the Programs operating on the Designated Equipment at the Location.
12.3. The Subscription Service shall be regarded as evergreen and will run from the Effective Date and thereafter from month to month thereafter unless and until terminated by:
12.3.1. The Licensee giving CSLI not less than 90 days written notice to expire on any monthly anniversary of the Effective Date.
12.3.2. CSLI giving to the Licensee not less than 90 days written notice to expire on any monthly anniversary of the Effective Date.
12.4. Subscription and Support Services shall comprise the following only: off-site advice and guidance during the Cover Period, available by telephone hot-line, to help the Licensee with the diagnosis and resolution of any technical problems the Licensee may have in connection with the use of the Programs. CSLI shall use all reasonable endeavours to correct any errors in the Programs (or replace these, as it chooses) within a reasonable time. CSLI may also provide new updates to the Programs and or program data from time to time (as it, in its sole discretion shall decide).
12.5. CSLI shall be entitled to appoint agents to carry out the Support Services on its behalf.
13.0 MISCELLANEOUS
13.1. If any part of these terms and conditions is held unlawful or unenforceable that part shall be struck out without affecting the remainder.
13.2. No delay, neglect or forbearance by either party in enforcing its rights under this agreement shall be a waiver of or prejudice those rights.
13.3. All notices under this agreement shall be in writing and shall be sent to the address of the recipient set out overleaf. All notices must be delivered by pre-paid first class post and shall be deemed to have been received 2 working days after posting.
13.4. These terms and conditions supersede any prior agreements, arrangements and undertakings between CSLI and the Licensee and constitutes the entire agreement between CSLI and the Licensee relating to the supply of the Programs and Related Documentation.
13.5. No variation of these terms and conditions shall be valid unless made in writing and signed by both parties.
13.6. This agreement is governed by the laws of England and Wales and is subject to the non-exclusive jurisdiction of the English Courts.