Notice to Client:
THIS IS AN AGREEMENT GOVERNING YOUR USE OF THE SYSTEM OR PRODUCT OR SOFTWARE OR WEBSITE OR WEB APPLICATION, REFERRED TO AS SYSTEM. THE LICENSOR OF THE SYSTEM IS WILLING TO PROVIDE YOU WITH THE USE OF THE SYSTEM ONLY IN CONJUNCTION WITH THE TERMS AND CONDITIONS CONTAINED IN THIS LICENCE AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST NOT USE THE SYSTEM AND THE SYSTEM (ALL COPIES, FILES AND VERSIONS) MUST BE DECOMISSIONED AND PERMANENTLY DELETED IMMEDIATELY. ON CONTINUED USE OF THE SYSTEM, YOU ARE BOUND BY THESE TERMS AND CONDITIONS.
The "Licensor" refers to Think Fluid LTD. The "Licensee" refers to the organization where the System is being used.
THE Licensor has developed certain computer programs, websites, web applications, related systems and documentation, and desires to grant the Licensee a license to use the said computer programs, websites, web applications, related systems and documentation.
WHERE AS, Licensee may use the computer programs, websites, web applications, related systems and documentation under the conditions set forth in this Agreement, superseding all other verbal or non verbal agreements.
NOW, THEREFORE, on the operation of the System, the Licensee and Licensor hereby agree to the terms set forth in this agreement:
The following definitions shall apply to this Agreement:
"System" means "websites", "web applications", "licensed program", "software" or "licensed program materials" (a) all digital or material files provided by the Licensor including documentation (i) Think Fluid LTD or third party computer information, systems (on the world wide web or local network systems) or software (ii) digital images, database backup files, stock photographs, clip art, sounds or other artistic works ("Stock Files"); (iii) related explanatory written materials or files ("Documentation"); and (iv) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the System, if any, licensed to the Licensee by the Licensor (collectively, "Updates").
The systems include but is not limited to SAMS, PBS, PBS Dairy App, PS3, Remote NBS Office Updater, NBS Replication, Head Office to Branch Offices Template Synchronisation, Portal Upload, Data Centralisation (Website and Feed), Office Performance Statistics (Website and Feed), Landlord Management System (Website and Feed), Taptra Feed, NorthwoodUK.com (Website and Feed), Infrastructure – Fail over, Brief Your Market view, NBS Archive & Remote Backup Tool, Project Manager, NBS Data Cleanser, Training Room NBS Update and Reset Tool, Any Systems developed for the Walsingham Shrine or related parties or related partners or any system that has been developed by Think Fluid LTD. This also applies to any derivative works of the mentioned systems, unless otherwise agreed in writing.
"Install" means to deploy or install the System on any kind storage device.
"Site" means the address of the Licensee where the System is to be installed and used.
"Derivative Works" means work that is based upon one or more pre-existing works, such as a revision, modification, translation, abridgment, compression, expansion or any other form in which such pre-existing work may be recast, transformed or adapted, and that, if prepared without authorisation by the Licensor of the pre-existing work, would constitute copyright infringement.
"Operating", "Operation", "Use", "Used", "Uses" or "Using" means (i) to access, execute, install, download, online access directly or through third party application, copy or otherwise benefit from using the functionality of the System in accordance with the Documentation. (ii) executing or loading the System into computer RAM or other primary memory remotely or locally on a computer, and (iii) copying the System for archival or emergency restart purposes.
"Additional Charges" means the charges at the Licensor's rates for work undertaken on a 'time and materials' basis as agreed in advance, in writing, by authorised representatives of both parties.
"Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
2. Software License
The Licensor hereby grants to Licensee a non-exclusive license to use the System subject to the terms and conditions hereinafter set forth. This License is effective when the System is installed and used. The license granted for the use of the System remains in force until the Licensee stops using the System or until the Licensor terminates this License because the Licensee has failed to comply with any of its terms and conditions.
The Licensee may only install the System with the permission of the Licensor.
The Licensee may only use the System on a limited number of computers as approved by the Licensor.
If the Licensee has been provided with the System prior to reviewing this agreement, all parts of this agreement shall be enforced automatically without limitation, on continued use of the System.
3. Licensee's Rights and Obligations
3.1 The System is protected by United Kingdom copyright laws and international treaties. Licensee must treat the System like any other copyrighted material. Licensee may not:
3.1.1 Copy the Documentation
3.1.2 Copy the System except where authorised by the Licensor and only on the purpose agreed in writing.
3.1.3 Modify or adapt the System or merge it into another program
3.1.4 Reverse engineer, disassemble, decompile or make any attempt to discover the source code of the System
3.1.5 Reverse engineer, disassemble, decompile or make any attempt to discover the structure of the databases or database backup files used or produced by the System.
3.1.6 Access the database through means other than through the Licensed System.
3.1.7 Access the database backup files without the express written permission of the Licensor.
3.1.8 Sublicense, rent, lease or lend any portion of the System or Documentation.
4. Intellectual Property
4.1 The Licensee may not use the trade marks or trade names or other intellectual property of the Licensor, but only as expressly authorised by Licensor and nothing shall be done which may damage or endanger the trade marks or other intellectual property of the Licensor.
4.2 The Licensee agrees that any copies of the System which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices of Licensor and, except as expressly authorised herein, the Licensee shall not distribute the same to any third party without the Licensor's prior written consent.
4.3 For the avoidance of doubt, any Software, Derivative Works or copies of the System that the Licensee are authorised to use, including any enhancements, modifications and updates remains the sole intellectual property of the Licensor. This is inclusive of, but is by no means limited to the structure, organisation and code of the System and the Database Structure to which are protected by copyright.
4.4 The Licensee acknowledges that it has no rights in respect of the trade marks or any trade names or other intellectual property of the Licensor. Such rights are, and shall remain vested in the Licensor.
4.5 The Licensee shall not:
4.5.1 Reverse compile, copy or adapt the whole or any part of the Licensed Programs / Materials for any purpose what so ever
4.5.2 Assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the licensed System or use the System on behalf of any third party or make available the same to any third party other than to the Licensee;
4.5.3 Remove or alter any copyright or other proprietary notice on any of the System.
4.5.4 Reproduce on any copy (whether in machine readable or human readable form) of the licensed program materials the Licensor's copyright and trademark notices;
4.6 The Licensee is under an obligation to notify Licensor immediately if either the Licensee becomes aware of any unauthorised use of the whole or any part of the System by any third party.
4.7 The Licensee is forbidden to enter into any third party agreements, which includes but is not limited to maintaining, updating, supporting, licensing of the System or related programs, if such agreements impact on this Agreement or System, without express written permission from the Licensor.
5.1 Licensor Warranty
NO OTHER WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE SYSTEM IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE SYSTEM OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE SYSTEM TO ACHIEVE YOUR INTENDED RESULTS, USE OF, AND RESULTS OBTAINED FROM THE SYSTEM. THE LICENSOR MAKES NO WARRANTY THAT THE SYSTEM WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE (REGARDLESS OF WHETHER THE LICENSOR KNOWS OR HAD REASON TO KNOW OF LICENSEE PARTICULAR NEEDS) WITH RESPECT TO THE SYSTEM AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE SYSTEM MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
5.2 Licensee Warranty
5.2.1 The Licensee shall give notice to the Licensor as soon as it is reasonably able upon becoming aware of a breach of this agreement.
5.2.2 The Licensee warrants and undertakes to the Licensor that it is the owner of the data supplied for conversion and that it has full power and authority to enter into this agreement and permit the Licensor to perform any additional services.
5.2.3 The Licensee undertakes to indemnify and hold harmless the Licensor against any loss or damage arriving at the use of System.
To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, regardless of whether the Licensor knows or had reason to know of Licensee's particular needs. No employee, agent, or distributor of the Licensor is authorised to modify this warranty, nor to make any additional warranties.
5.2.4 In the event of a breach the owner of the licensee shall be vicariously liable for all of the actions of its employees, contractors, individuals and any other associates of the Licensee.
5.2.5 The Licensee will indemnify the Licensor against any claim made by the Licensee or associated parties arising from the use of the System provided by the Licensor.
6. Limited Remedy
IN NO EVENT WILL THE LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE (EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY).
7.1 This Agreement may be terminated:
7.1.1 by either party within 28 days of a written notice.
7.1.2 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 28 days of a written request to remedy the same;
7.1.3 forthwith by a party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary agreement with Part I of the Insolvency Act 1986 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 within the meaning of section 123 of the Insolvency Act 1986 or if the trustee receiver administrative receiver or similar officer is appointed in respect 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 administrative order (otherwise than for the purpose of an amalgamation or reconstruction).
7.1.4 forthwith the Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this Agreement or if Licensee becomes bankrupt or insolvent. This License Agreement takes effect upon Licensee's use of the System and remains effective until terminated.
7.2 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 of any provision herein which is expressly or by implication intended to come into or continue in force on or after such termination.
7.2.1 For the avoidance of doubt, clauses 3, 4, 5, 6, 10 and 11 shall survive the termination of this agreement.
7.3 Within 7 days of the termination of this agreement (howsoever and by whomsoever occasioned) the Licensee shall at the Licensor's sole option either return all copies of the System in its possession or control, or shall destroy all copies of the System in its possession or control and a duly authorised officer of the Licensee shall certify in writing to the Licensor that the Licensee has complied with its obligation as aforesaid. Upon the Licensor discretion the Licensor reserves the right to inspect any system installation site.
8. Modification and Enhancements
(i) The Licensee shall not alter or modify the System or create a new installer for any such system, (ii) such System is licensed and distributed by the Licensor, and (iii) the Licensee is not authorised to use any plug-in or enhancement that permits the Licensee to alter the original functionality of the system.
9. Provision for use
The Licensee requires approval from the Licensor for the scope of use of the System. In the case where the Licensor has installed and deployed the said System, the Licensors approval is implied.
10. Software Maintenance
The Licensor will periodically modify, update and change the System which will update the Licensee System automatically or manually at the Licensee's own risk. The Licensee has the right to opt out of updates or choose the update process be it automatic or manual.
Updates will be dispensed at the convenience and schedule of the Licensor.
The Licensee 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 System without the prior written consent of the Licensor.
12.1 Where Licensee has obtained Confidential Information from the Licensor, the Licensee shall:
12.1.1 Keep the Confidential Information confidential;
12.1.2 Not disclose the Confidential information to any other person or party than with the prior written consent of the Licensor party; and
12.1.3 Not use the Confidential Information for any other purposes other than the performance of its obligations under this Agreement.
12.2 The Licensee, shall use all reasonable endeavours to ensure that all employees, individuals, contractors and any other associates who are privy to the Confidential Information by virtue their association with the Licensee, will be made aware of, and comply with all the Licensee's obligations of confidentiality under these terms as if the recipient was a party hereto.
12.3 Keep confidential the System 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 System (including where appropriate the program documentation);
12.4 This clause applies to, but is not limited to any information concerning the Licensor's trade secrets, methods, processes or procedures or any other confidential, financial or business information of the Licensee which it learns during the course of its performance of this Agreement, without the prior written consent of such other party.
12.5 The obligations contained in 12.1 to 12.3 shall not apply to any Confidential Information which:
12.5.1 Is at the date of this Agreement in, or at any time after the date of the Agreement comes into the public domain other than through a breach of these terms by the receiving party or any recipient;
12.5.2 Subsequently comes lawfully into the possession of the receiving party from a third party;
12.6 The obligations contained within clauses 12.1 to 12.3 shall not prevent any disclosure of Confidential Information which is required by law, court order or any legal or regulatory authority, which is required to comply with the rules of any relevant stock exchange, or disclosure to a party's professional advisors, acting in their capacity as such.
12.7 No public announcements concerning the existence or contents of this Agreement shall be made by Licensee without the prior written consent of the other party, such consent not to be unreasonably withheld.
12.8 The Licensee shall not refer to the existence of this Agreement or related fees without the prior written consent of the Licensor.
ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCALS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.
This agreement shall be binding upon and serve for the benefit of the successors in title of the parties hereto.
The parties agree to submit any dispute under this License to binding arbitration in the United Kingdom.
15. Legal Representation
If any legal action is necessary to enforce this License, the Licensor shall be entitled to reasonable legal fees, costs and expenses in addition to any other relief to which it may be entitled from the Licensee.
16. Limited Liability
Unless otherwise expressly stated herein, the Licensor shall not be liable to Licensee for any consequential damages arising out of Licensor's breach of this Agreement.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class recorded delivery to the address of Licensor (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 the delivery upon the expiration of 48 hours after posting.
Notices to the Licensor: 431 Sidcup Rd, London SE9 4ET
18. Governing Law
This Agreement shall be governed by and construed under the laws of the United Kingdom.
19. Legal Proceedings, Venue and Services
Licensor consents and agrees that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the United Kingdom, and Licensor consents and agrees that the venue for such proceedings shall lie exclusively with such courts. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address at which it is to receive notice as provided herein.
20. Invalidity and Severability
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
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.
22. Force Majeure
Neither party hereto shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fire, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks, delays in transportation, inability to obtain supplies and raw materials requirements, or regulations of any civil military authority (an "Event of Force Majeure").
23. Period for Bringing Action
No action, regardless of form, arising out of the transactions under this Agreement, may be brought by the Licensee more than six (6) months after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
24. Duration of the Agreement
This agreement shall continue until terminated in accordance with the provisions of clause 7 as set out in this agreement.
25. Complete Agreement
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except on System updates executed by the Licensor without prior notice. The Licensee executes this agreement upon continued use of the System, with or without full knowledge of its content and significance and intending to be legally bound by the terms hereof upon continued use of the said System.