(1)QCIC Ltd (a company registered in England under company number 06318342) whose registered office is at 13 Christopher Street, London EC2A 2BS (“QCIC”); and
(2)The person, partnership, company or other undertaking accepting this contract by clicking the [“accept”] button on the webpage from which this Licence is granted (the “Customer”).
(A)The Customer wishes to purchase a Licence of the Software indicated below.
(B)QCIC is willing to grant such a Licence of that Software provided that the Customer accepts the terms and conditions set out below.
IT IS AGREED AS FOLLOWS:
In this Software Licence:
1.3.1“Additional Charges” means charges to be calculated by QCIC in accordance with QCIC’s standard rate for time, materials, travel, accommodation and subsistence from time to time prevailing;
1.3.2“Business Day” means a day other than a day which is a Saturday, Sunday or a public holiday in either England or the country in which the Customer is situated;
1.3.3“Consequential Loss” means pure economic loss, loss of profit, loss of use of trade marks, loss of business and like loss;
1.3.4“Copy” means an individual copy on electromagnetic recording material of [one or more of the programs constituting] the Software;
1.3.5 “Intellectual Property Right” means patents, design rights, copyright, trade marks, database rights and any other intellectual property right whether or not registered or capable of registration;
1.3.6“Loss of Data” means a loss of or corruption to data or programs held or used by or on behalf of the Customer;
1.3.7 “Party” means QCIC or the Customer;
1.3.8 “Required Software” means the following computer aided design software: [<specify>]
1.3.9“Software” means the computer software licensed to the Customer by QCIC under this Software Licence being software to analyse files prepared using the Required Software and which suggests security enhancements for buildings;
1.3.10“Software Licence Fee” means the licence fee for the Software of which the Customer has been notified in the registration process and being the fee payable in respect of the right to use the Software under this Software Licence;
1.3.11[“Software Maintenance Services” means the provision of the maintenance services as detailed in clause 3.5.1; ]
1.3.12“Specification” means the user manual and documentation describing the use of the Software supplied by QCIC to the Customer in written form and the “help” functions within the Software;
1.3.13 “Third Party” means a person, partnership, company or any other undertaking not being QCIC or the Customer.
1.4.1Notwithstanding a description of the Customer’s rights as or by virtue of a sale (howsoever made including without limitation on QCIC’s websites) the Customer’s only right to use the Software is by virtue of the licence granted under this Software Licence and the Customer acknowledges that all Intellectual Property Rights in or relating to the Software and all related documentation are and shall remain the exclusive property of.
1.4.2Subject to the continuing payment by the Customer to QCIC of the Software Licence Fee and of the earlier rights to terminate this Software Licence, (i) QCIC hereby grants to the Customer a non-exclusive non-transferable licence to use the Software up to a maximum of thirty (30) years from the date of this Software Licence upon the terms and conditions of this Software Licence [and (ii) QCIC shall provide the Software Maintenance Services].
1.4.3The licence hereby granted and the Customer’s rights to use the Software are subject to the following restrictions:
126.96.36.199the Software shall be used only by the Customer and for the purposes of the Customer’s own internal business;
188.8.131.52the Software shall be used only in conjunction with the Required Software;
184.108.40.206the Customer shall not assign, sub-license, charge or otherwise dispose of or grant rights over or out of the licence hereby granted or the Software and shall not attempt to do any such thing;
220.127.116.11the Customer shall not attempt to ascertain or list the source programs or source code relating to the Software; and
18.104.22.168the Customer shall not decompile or translate the Software into any other computer language nor attempt so to do.
1.4.4The Customer agrees not to use the Software or the associated documentation save in accordance with the terms and conditions of this Software Licence.
1.4.5Notwithstanding clause 22.214.171.124 above the Customer shall not without the prior written consent of QCIC use the Software as part of a computer bureau business or an outsourcing business.
1.4.6The Customer acknowledges and agrees that none of the acts which are prohibited by the provisions of this Software Licence (including, without limitation, the prohibitions on copying or adapting the Software or any part for the purpose of correcting errors in the Software) are necessary for the purposes of the use of the Software by the Customer in accordance with its intended purpose or for the purposes of the use of the Software in accordance with this Software Licence.
1.4.7The Customer shall not modify, alter or in any way interfere with the Software or merge the Software with other programs or systems.
1.4.8If any unauthorised use is made of the Software (or any of it) and such use is attributable to the act or default of the Customer then, without prejudice to QCIC’s other rights and remedies, the Customer will immediately be liable to pay QCIC an amount equal to the charges which QCIC would have levied had QCIC authorised the grant of a licenve to or for such unauthorised user at the beginning of the period of such unauthorised user together with interest at the rate provided for in clause 3.6.3 from the date of such unauthorised use to the date of payment.
1.5.1QCIC agrees to provide the following Software Maintenance Service to the Customer in respect of the Software:
126.96.36.199reasonable assistance in the resolution of queries via a telephone call originated by the Customer;
188.8.131.52recommendations relevant to the course of action necessary to recover from a fault, error or failure emanating from the Software or its use; and
184.108.40.206upon request by the Customer reasonable efforts to diagnose and rectify faults in the Software by the issue of fixes in respect of the Software.
1.5.2The Customer shall supply to QCIC (in writing if QCIC so requests) a detailed description of the fault requiring Software Maintenance Service by virtue of clause 3.5.1 above and the circumstances in which the fault arose promptly upon becoming aware of such circumstances.
1.5.4The above Software Maintenance Service shall not include the diagnosis and rectification of a fault resulting from:
220.127.116.11the improper use operation or neglect of the Required Software or any associated hardware or network;
18.104.22.168the use of the Software by an individual who is not reasonably competent in the use of the Software;
22.214.171.124the use of the Software in conjunction with computer aided design software other than the Required Software;
126.96.36.199the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by QCIC;
188.8.131.52the use of the Software for a purpose for which it was not designed.
1.5.5QCIC reserves the right to upgrade the Software in its discretion including without limitation to correct errors or improve or modify performance of the Software.
1.6.1The Software Licence Fee for the use of the Software shall be as indicated in the registration process.
1.6.2The customer shall pay the Software Licence Fee in advance in the manner indicated in the registration process.
1.6.3QCIC shall be entitled to charge the Customer simple interest on any sums, fees or other charges payable under this Software Licence which are not paid on the due date. Such interest shall be calculated on a daily basis at the rate of three per cent (3%) per annum above the base lending rate of Lloyds Bank plc from time to time prevailing, as well after as before any judgment.
1.6.4Where the Customer fails to pay any monies on the due date or does not comply with an obligation imposed upon the Customer under this Software Licence then, without prejudice to any other right or remedy available to QCIC, QCIC shall be entitled to:
184.108.40.206withhold the supply of any Software or services to be provided to the Customer by or on behalf of QCIC until such payment is made;
220.127.116.11suspend the performance of any obligation owed by QCIC under this Software Licence until such payment is made; and
18.104.22.168require payment in full by the Customer for all further Software and services which QCIC agrees to supply further to this Software Licence before supplying that Software or services.
1.6.5All sums quoted under or further to this Software Licence are exclusive of value added tax and any other similar tax which will be added at the rate prevailing as at the date of invoice.
1.6.6The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any monies owed by the Customer and shall pay all amounts due to QCIC under or further to this Software Licence without making a deduction of any kind.
1.7SUBSTITUTION AND MODIFICATION
QCIC reserves the right, as QCIC shall in its discretion determine, to make an improvement, substitution or modification in the specification of any element or part of the Software provided that such improvement, substitution or modification will not substantially worsen the overall performance of the Software.
1.8.1The Customer shall pay all sums, fees and other charges due under this Software Licence on the dates provided for under this Software Licence;
1.8.2The Customer shall promptly provide QCIC, on request, with all information and assistance that QCIC may reasonably require relating to its use of the Software.
1.8.3The Customer alone shall be responsible for the accuracy and validity of the information provided by the Customer including without limitation when the Customer uses the Software.
1.8.4The Customer acknowledges that it is relying solely upon its own skill and judgment and not that of QCIC in determining the suitability of the Software and the fitness for any general or specific purpose of the Software.
1.8.5The Customer shall provide all necessary internet connectivity and bandwidth to enable the Customer to use the Software and the Customer acknowledges that QCIC has no responsibility for the same.
QCIC shall provide such documentation and embedded help facilities as QCIC in its reasonable discretion considers necessary for the proper use of the Software.
1.10.1QCIC warrants to the Customer that it has the right to grant the Customer the licence and rights hereby granted in the software licence set out in clause 3.4.
1.10.2QCIC does not guarantee that the Customer’s telecommunications system or the internet (upon which the Customer’s use of the Software relies) will always function without disruptions, delay or errors. In addition, a number of factors may impact the quality or reliability of the Customer’s telecommunications and internet connectivity (and thereby the Customer’s use of the Software and the system to which the Software connects) including without limitation: the Customer’s local telecommunication network, the Customer’s firewall, the Customer’s internet service provider and the bandwidth which the Customer uses to connect to the internet. The Customer agrees that QCIC is not responsible for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which QCIC has no control.
1.10.3The Customer acknowledges that QCIC has only a single point of presence for the system to which the Software connects. Further, QCIC does not guarantee the amount of bandwidth at that point of presence.
1.10.4QCIC warrants that it will perform any services with reasonable skill and care.
1.11EXCLUSIONS & LIMITATIONS OF LIABILITY
1.11.1Subject to clauses 3.10.1 and 3.10.4 above and to the maximum extent permissible in law all conditions and warranties which are to be implied by statute or otherwise by general law into this Software Licence or relating to the Software or the services are hereby excluded.
1.11.2[QCIC’s charges to the Customer are determined on the basis of the exclusions from and limitations of liability contained in this Software Licence. The Customer expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the possibility that otherwise the amount of damages awardable to the Customer for a breach by QCIC of this Software Licence may be disproportionately greater than the price of the Software. QCIC is willing to arrange for additional insurance cover to enable QCIC to take on the burden of additional liability to the Customer provided that the Customer pays QCIC a commensurately higher price for the Software. If the Customer wishes QCIC to obtain a quotation for such additional insurance cover the Customer shall notify QCIC accordingly prior to this Software Licence being entered into. ]
1.11.3The following provisions in this clause 3.11 set out QCIC’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:
22.214.171.124a breach of QCIC’s contractual obligations;
126.96.36.199a tortious act or omission for which QCIC is liable;
188.8.131.52an action arising out of a misrepresentation made by or on behalf of QCIC,
184.108.40.206arising in connection with the performance or contemplated performance of this Software Licence.
1.11.4The total liability which QCIC shall owe to the Customer and in respect of all claims shall not exceed the higher of (a) three times the Software Licence Fee payable by the Customer to QCIC for the first year of use of the Software and (b) the sum of twenty thousand pounds (£20,000).
1.11.5QCIC shall in no circumstances be liable to the Customer for any Consequential Loss.
1.11.6QCIC shall in no circumstances be liable to the Customer for any indirect loss.
1.11.7QCIC shall in no circumstances (whether before or after termination of this Software Licence) be liable to the Customer for any Loss of Data and the Customer shall at all times keep adequate back-up copies of the Customer’s input data and the output results of the Software.
1.11.8The Customer shall only be entitled to bring a claim against QCIC where the Customer issues legal proceedings against QCIC within the period of twenty four (24) months commencing on the date upon which the Customer ought reasonably to have known of its entitlement to bring such a claim.
1.11.9The exclusions from and limitations of liability referred to in this clause 3.11 do not apply so as to exclude or limit QCIC’s liability to the Customer for:
220.127.116.11death or personal injury resulting from the negligence of QCIC, its employees, agents or sub-contractors;
18.104.22.168breach of QCIC’s implied undertaking (if any) as to title to the Software or the warranty (if any) as to quiet possession implied by law or statute
22.214.171.124damage for which QCIC is liable to the Customer under part I of the Consumer Protection Act 1987 where the Customer acts as a consumer pursuant to that Ac; or
save that nothing in this clause 3.11 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled.
1.11.10The exclusions from and limitations of liability set out in this clause 3.11 shall be considered severably. The invalidity or unenforceability of any one part of this clause 3.11 shall not affect the validity or enforceability of any other part of this clause 3.11.
1.11.11The provisions of this clause 3.11 shall survive the termination of this Software Licence.
1.12USE OF THE SOFTWARE
1.12.1The Customer acknowledges that the Software is a tool only and should be used in conjunction with other methods of determining the security enhancements for buildings. The Customer shall keep the Company fully and effectually indemnified from and against all costs, claims, liabilities and demands relating to or arising from the use of the Software and in respect of any loss, damage, expense or injury sustained by any Third Party howsoever caused where such loss, damage, expense or injury arises out of the use made by the Customer of the Software (including without limitation arising out of a defect in the Software.
1.12.2The Customer accepts the sole responsibility to keep secret any password supplied by QCIC. QCIC shall be entitled to rely at all times to rely on any communication transmitted to QCIC using the Customer’s password as having come from the Customer.
1.13.1Any delay in or failure of performance of any obligation by either Party (save an obligation in respect of the payment of monies) shall not constitute a breach of such obligation but only to the extent that such a delay or failure is caused by an event which is not within the reasonable control of the Party otherwise in default and which such Party is unable to prevent or to circumvent by the exercise of reasonable diligence including without limitation an event such as a war, riot, civil commotion, fire, flood, earthquake, epidemic, inability or delay in obtaining supplies of adequate or suitable materials, strike, lock-out or other industrial action or trade dispute (whether or not involving the work force or a part of the work force of the Party otherwise in default).
1.13.2The Party otherwise in default shall (a) take all reasonable steps to circumvent and mitigate the effect of such event and to reduce any delay in the performance of such obligation and (b) give notice to the other Party of such event as soon as reasonably practicable.
1.14TERMINATION OF THE SOFTWARE LICENCE
1.14.1QCIC may by written notice terminate the whole of this Software Licence with immediate effect by giving not less than fourteen (14) days notice to the Customer at any time. The Customer may by written notice terminate the whole of this Software Licence with immediate effect by giving not less than one hundred and eighty (180) days notice to QCIC at any time.
1.14.2The termination of this Software Licence shall be without prejudice to the rights and duties of either Party accrued prior to termination.
1.14.3Upon any termination of this Software Licence the Customer shall be entitled to a pro rata rebate of any monies paid in advance in respect of the use of the Software where the licence fee is paid by the Customer monthly or in respect of some other period.
1.14.4Following the termination of this Software Licence the Customer shall immediately cease to be entitled to use and shall cease to use the Software.
Where the Customer is required to contact QCIC then it shall contact QCIC at 13 Christopher Street, London EC2A 2BS or by telephone on 0207 060 7242 or e-mail to [email@example.com] or by such other contact details as QCIC may from time to time specify to the Customer.
1.16.1If a provision in this Software Licence is determined by a Court or tribunal of a competent jurisdiction to be wholly or partly unenforceable for any reason:
126.96.36.199such unenforceability shall not affect the rest of this Software Licence; and
188.8.131.52the Parties shall in good faith amend and if necessary novate this Software Licence to reflect as near as may be the spirit and intention behind such unenforceable provision or provisions so that the same comply with the laws of that jurisdiction.
1.17.1The Customer shall not transfer, mortgage or charge this Software Licence or any of its rights, benefits or liabilities under this Software Licence (or purport to do so) without the previous consent in writing of QCIC,.
1.17.2QCIC may assign this Software Licence in its discretion.
QCIC shall be free to sub-contract any of its rights and obligations under this Software Licence in its discretion.
The export of computer products from the United Kingdom and their re-export from the country to which they were originally exported is subject to control and prohibitions by virtue of the legislation of the United Kingdom, United States of America and European Economic Area. The Customer agrees that it will not export or re-export in breach of any such control or prohibition.
1.20.1Each Party agrees with the other in respect of all information of a confidential nature disclosed pursuant to this Software Licence (which includes without limitation in the case of information belonging to QCIC information as to the operation of the business of QCIC and information relating to the source code and structure of the Software) (“Confidential Information”):
184.108.40.206to keep the Confidential Information in strict confidence and secrecy;
220.127.116.11not to use the Confidential Information save for complying with its obligations under this Software Licence;
18.104.22.168not to disclose the same to a Third Party;
22.214.171.124to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees and others who of necessity need the same in the performance of their duties as envisaged by this Software Licence and in such circumstances to ensure that such employees and others are aware of the confidential nature of the Confidential Information,
provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under this Software Licence) then the foregoing obligations of confidentiality in respect of such part shall not apply or shall cease to apply (as the case may be).
1.20.2This obligation of confidentiality shall survive the termination of this Software Licence.
1.21AMENDMENT AND WAIVER
1.21.1No amendment of this Software Licence shall be binding unless executed in writing and signed by an authorised representative of each of the Parties.
1.21.2Save in respect of a waiver granted in writing, the failure of either Party at any time to enforce a provision of this Software Licence shall not be deemed a waiver of such provision or of any other provision of this Software Licence or of such Party’s right thereafter to enforce that or any provision of this Software Licence.
1.22CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999
A Third Party who is not a Party to this Software Licence shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any provision of this Software Licence but this shall not affect any right or remedy of any Third Party which exists or is available apart from that Act.
1.23.1Any notice to be given pursuant to this Software Licence shall be in writing and may be served and if so served shall be deemed to have been duly served:
126.96.36.199if delivered by hand, when left at the proper address for service;
188.8.131.52if given or made by prepaid first class post, 48 hours after being posted (excluding days that are not Business Days); or
184.108.40.206if given or made by e-mail, at the time of error-free transmission;
provided that where in the case of delivery by hand or transmission by e-mail such delivery or transmission occurs either after 4 pm on a Business Day or on a day other than a Business Day service shall be deemed to occur at 10 am on the next following Business Day (such times being local time at the address of the recipient).
1.23.2Any notice shall be made in writing or by e-mail addressed to the recipient in the case of a company at its registered office, in the case of a sole trader or partnership to its principal place of business or its address stated in this Software Licence (or such other address as may have been notified in writing by the recipient Party from time to time) and shall be marked for the attention of the Managing Director.
1.24ENTIRE AGREEMENT AND REPRESENTATIONS
1.24.1This Software Licence sets forth the entire agreement and understanding of the Parties relating to the subject matter of this Software Licence, and supersedes all prior discussions and arrangements between them.
1.24.2The Parties acknowledge that in entering into this Software Licence they have not relied upon any representations other than those reduced to writing in this Software Licence. The provisions of this Clause 3.24 shall not apply to any fraudulent misrepresentation.
1.25.1Reference in this Software Licence to a clause is to a clause of this Software Licence.
1.25.2The headings to the clauses of this Software Licence shall not affect the construction of this Software Licence.
1.25.3In this Software Licence where the context so admits and requires the same the use of the plural shall include the singular and the use of the singular shall include the plural.
1.25.4In this Software Licence references to the masculine, feminine or neuter genders shall include each and every gender.
1.25.5Where a consent or approval is to be given or a discretion is to be exercised under a term or condition of this Software Licence by QCIC then QCIC shall be entitled (unless the contrary is expressly indicated) to withhold (or give) such consent, approval or discretion at QCIC’s absolute discretion.
1.26LAW AND ARBITRATION
The formation, construction, performance, validity and all aspects whatsoever of this Software Licence shall be governed by English Law and the parties hereby submit to the non-exclusive jurisdiction of the English courts.