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Ai Solutions Ltd Software Agreement

PARTIES:

  1. "The Company": AI SOLUTIONS LIMITED (registered number 3009721) whose registered office is Vimy Road Leighton Buzzard Bedfordshire LU7 1ER
  2. "The Licencee": The Organisation named on the main menu help about screen of the Licenced Programs

RECITAL:

The Company has agreed to grant the Licencee a non-exclusive Licence to use the computer software programs and associated documentation listed in the Schedule and to provide certain software support services to the Licencee upon the terms and conditions of this agreement

OPERATIVE PROVISIONS:

  1. Definitions
    1. In this Agreement

2. GRANT OF LICENCE AND PROVISION OF SERVICES

    1. The Company in consideration of the payment by the Licencee from time to time of the Licence Fee in accordance with Clause 3 below hereby:
      1. grants to the Licencee a non-exclusive Licence to Use the Licenced Programs (and where appropriate the Program Documentation) upon the Designated Equipment and to possess and refer to the Program Documentation and
      2. undertakes to the Licencee to provide the Update Services for the Term upon the terms and conditions of this Agreement
    2. The Licence is granted under Clause 2.1 above on condition that:
      1. no more than the number of persons given in the Schedule may concurrently access the Licenced Programs in Use
      2. the Licenced Programs in Use are only accessed via the menus provided
    3. For the mutual security of both parties each copy of the Licenced Programs contains an expiry date During the Term the Company undertakes to despatch Updates to extend the copy of the Licenced Programs in advance of each expiry date but the Licencee is responsible for ensuring that such Updates are received and applied in a timely fashion

3. LICENCE FEE

    1. The Licence Fee shall include the costs of:
      1. the supply of the Licenced Program Materials and any Update and
      2. the provision of the Update Service and where agreed the fixed training package
    2. The Licence Fee shall be levied by the Company on the Acceptance Date and thereafter annually on the Renewal Date unless the agreement is terminated as per Clause 11.1
    3. The Company’s invoices are due and payable in advance of a product or service provision and within 30 days of invoice date whichever is sooner
    4. The Company reserves the right to charge the Licencee the Late Payment Fee in respect of the late payment of any invoice raised under this Agreement
    5. The Company will charge interest upon overdue invoices at the rate of 1% per calendar month on the amount outstanding
    6. The Company reserves the right to charge interest at the current reference rate in accordance with The Late Payment of Commercial Debts (Interest) Act 1998
    7. The Company is entitled to increase the Licence Fee at each Renewal Date in accordance with the increase in Retail Prices Index (RPI) (as published by the National Statistics Office)  The Company will base any increase on the RPI for the month of September in the preceding year for renewals dating from March 1st and for the following 11 months

4. INSTALLATION TESTING AND ACCEPTANCE OF AGREEMENT

    1. The Licencee shall install the Licenced Programs on the Designated Equipment and shall be entitled free of charge for a period of five (5) Working Days from the delivery date to Use the Licenced Programs (in association with the Program Documentation) not for the purpose of its trade or business but solely for the purpose of assessing whether they meet its requirements
    2. If during the Trial Period the Licencee shall decide that the Licenced Program Materials do not meet its requirements then the Licencee shall be entitled on notice to the Company to terminate this agreement within that trial period and upon any such termination the provisions of Clause 11.3 below (but not 11.4) shall apply
    3. If the Licencee does not terminate this agreement by notice pursuant to Clause 4.2 above or if during the Trial Period it shall Use the Licenced Programs for the purposes of its trade or business then (in either case) with effect from the day after the expiration of the Trial Period the Licencee shall be deemed to have accepted the Licenced Program Materials

5. UPDATE SERVICES

    1. With effect from the Acceptance Date and for the Term the Company shall provide in respect of each of the Licenced Programs an Update Service which shall comprise
      1. advice on the Use of the Licenced Programs provided at the Company's option by fax telephone or post
      2. upon request by the Licencee the diagnosis of faults in the Licenced Programs and the rectification of such faults by the issue of Updates in respect of the Licenced Programs and the making of all necessary consequential amendments (if any) to the Program Documentation
      3. the creation and despatch to the Licencee from time to time at the Company's sole discretion of Updates in respect of the Licenced Programs including the knowledge bases associated with the Licenced Programs
    2. The Licencee shall supply in writing to the Company a detailed description of any fault requiring Update Service within Clause 5.1.2 above and the circumstances in which it arose forthwith upon becoming aware of the same
    3. If the Company receives a request for Update Service under Clause 5.1.2 between the hours of 9am and 5.30pm Monday through Friday (excluding bank and other public holidays) the Company shall use its reasonable endeavours to respond on the next Working Day
    4. Update Service shall not include the diagnosis and rectification of any fault resulting from:
      1. the improper use operation or neglect of either the Licenced Program Materials or the Designated Equipment
      2. the modification of the Licenced Programs or their merger (in whole or in part) with any other software
      3. the use of the Licenced Programs on equipment other than the Designated Equipment
      4. the failure by the Licencee to implement recommendations in respect of or solutions to faults previously advised by the Company
      5. any repair adjustment alteration or modification of the Licenced Programs by any person other than the Company without the Company's prior written consent
      6. any breach by the Licencee of any of its obligations under any maintenance agreement in respect of the Designated Equipment
      7. the Licencee's failure to install and Use upon the Designated Equipment in substitution for the previous release any Update of the Licenced Programs within five (5) Working Days of receipt of the same or
      8. the use of the Licenced Programs for a purpose for which they were not designed
    5. The Company shall upon request by the Licencee provide Update Service notwithstanding that the fault results from any of the circumstances described in Clause 5.4 above The Company shall in such circumstances be entitled to levy Additional Charges in the manner set out in Clause 5.7 below
    6. Without prejudice to Clause 5.5 above the Company shall be entitled to levy reasonable Additional Charges in the manner set out in Clause 5.7 below if Update Service is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licencee's request to have been unnecessary
    7. Additional Charges shall be levied by the Company monthly in arrears and shall be payable by the Licencee within thirty (30) days of invoice date
    8. Update Services do not include enhancements to functionality of the Licenced Programs or version upgrades

6. PROPERTY AND CONFIDENTIALITY IN THE LICENCED PROGRAM MATERIALS

    1. The Licenced Program Materials contain confidential information of the Company and all copyright trade marks and other intellectual property rights in the Licenced Program Materials are the exclusive property of the Company
    2. The Licencee shall not;
      1. save as provided in Clause 7 below make back-up copies of the Licenced Program Materials
      2. assign transfer sell lease rent charge or otherwise deal in or encumber the Licenced Program Materials or use on behalf of or make available the same to any third party or
      3. reverse compile copy or adapt the whole or any part of the Licenced Program Materials
      4. save solely for the purposes expressly permitted by and in accordance with S.296(A) (1) CDPA or S.50 C (2) CDPA copy adapt or reverse compile the whole or any part of the Licenced Program Materials
      5. remove or alter any copyright or other proprietary notice on any of the Licenced Program Materials
      6. access the Licenced Database by means other than the Licenced Program Materials
    3. The Licencee shall:
      1. keep confidential the Licenced Program Materials and limit access to the same to those of its employees agents and sub-contractors who either have a need to know or who are engaged in the use of the Licenced Programs (including where appropriate the Program Documentation)
      2. reproduce on any copy of the Licenced Program Materials the Company's copyright and trade mark notices
      3. maintain an up-to-date written record of the number of copies of the Licenced Program Materials and their location and upon request forthwith produce such record to the Company
      4. without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Company in the Licenced Program Materials; and
      5. from time to time either permit the Company access to the Designated Equipment to audit compliance by the Licencee with its obligations under this Agreement or at the Company's option supply the Company with an audit certificate in such form as the Company may reasonably require signed by a responsible person certifying compliance by the Licencee with its obligations under this Agreement
    4. The Licencee shall take all reasonable steps to ensure compliance by its employees agents and sub-contractors with the provisions of this Clause 6

7. COPYING OF THE LICENCED PROGRAM MATERIALS

    1. The Licencee shall be entitled to make one back-up copy of each of the Licenced Programs Any such copy shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Licenced Programs
    2. The Licencee shall not be entitled to copy in whole or in part the Program Documentation

8. WARRANTY

    1. Subject to the exceptions set out in Clause 8.4 below and the limitations upon its liability in Clause 9 below the Company warrants that:
      1. its title to and property in the Licenced Program Materials is free and unencumbered and that it has the right power and authority to licence the same upon the terms and conditions of this agreement
      2. the media upon which the Licenced Program Materials are stored will for a period of sixty (60) days from the Acceptance Date be free from defects in materials design and workmanship
      3. the Licenced Programs will for a period of sixty (60) days from the Acceptance Date when properly used provide the facilities and functions and perform substantially as described in the Program Documentation and
      4. it will perform the Update Service with reasonable care and skill
    2. The Licencee shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty
    3. Subject to Clause 8.4 below the Company shall remedy any breach of the warranties set out in clauses 8.1.2 and 8.1.3 above by the provision of Update Service under Clause 5.1.2
    4. The Company shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in Clause 5.4 above
    5. Without prejudice to the foregoing the Company does not warrant that the Use of the Licenced Programs will meet the Licencee's data processing requirements or that the operation of the Licenced Programs (including where in machine-readable form the Program Documentation) will be uninterrupted or error free
    6. This clause 8 represents your complete warranty anything else implied or statutory is excluded

9. LIMITATION OF LIABILITY AND INSURANCE

    1. The following provisions set out the Company's entire liability (including any liability for the acts and omissions of its employees agents and subcontractors) to the Licencee in respect of:
      1. any breach of its contractual obligations arising under this agreement and
      2. any representation statement or tortious act or omission including negligence arising under or in connection with this agreement AND THE LICENCEE'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS 0F THIS CLAUSE 9
    2. Any act or omission on the part of the Company or its employees agents or sub-contractors falling within Clause 9.1 above shall for the purposes of this Clause 9 be known as an "Event of Default"
    3. The Company's liability to the Licencee for death or injury resulting from its own or that of its employees' agents' or sub-contractors' negligence shall not be limited
    4. Subject to the provisions of Clause 9.3 above the Company's entire liability in respect of any Event of Default shall be limited to damages of an amount equal to twice the aggregate of the first year’s Licence Fee paid by the Licencee
    5. Subject to Clause 9.3 above the Company shall not be liable to the Licencee in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Licencee as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Licencee incurring the same
    6. If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement
    7. The Licencee hereby agrees to afford the Company not less than thirty (30) days (following notification thereof by the Licencee) in which to remedy any Event of Default hereunder
    8. Except in the case of an Event of Default arising under Clause 9.3 above the Company shall have no liability to the Licencee in respect of any Event of Default unless the Licencee shall have served notice of the same upon the Company within sixty (60) days of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware
    9. The Company will maintain public liability insurance and professional indemnity insurance in a sum the Company considers sufficient to satisfy any liabilities it may incur as a result of an Event of Default, provided that cover remains available at commercially realistic rates

10. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

    1. The Company will indemnify and hold harmless the Licencee against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect or any claim or action that the normal operation possession or Use of the Licenced Program Materials by the Licencee in the United Kingdom infringes the patent copyright registered design or trade mark rights of that third party (an "Intellectual Property Infringement") provided that the Licencee:
      1. gives notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same
      2. gives the Company the sole conduct of the defence to any claim or action in respect or an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the claim or action except upon the express instructions of the Company and
      3. acts in accordance with the reasonable instructions of the Company and gives to the Company such assistance as it shall reasonably require in respect of the conduct of the defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents
    2. The Company shall reimburse the Licencee its reasonable costs incurred in complying with the provisions of Clause 10.1 above
    3. The Company shall have no liability to the Licencee in respect of an Intellectual Property Infringement if it results from any breach of the Licencee's obligations under this Agreement
    4. In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to:
      1. procure the right for the Licencee to continue using the Licenced Program Materials or
      2. make such alterations modifications or adjustments to the Licenced Program Materials that they become non-infringing without incurring a material diminution in performance or function or
      3. replace the Licenced Program Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function
    5. If the Company in its reasonable judgement is not able to exercise any of the options set out at Clauses 10.4.1 10.4.2 or 10.4.3 above within one hundred and twenty (120) days of the date it received notice of the Intellectual Property Infringement then the Licencee without prejudice to any other rights or remedies it may have shall be entitled to terminate this Agreement by thirty (30) days' notice upon the Company  Upon any such termination the provisions of Clause 11 below (but not 11.4) shall apply
    6. The provisions of Clause 9 above shall not apply to this Clause 10

11. TERMINATION

    1. This Agreement may be terminated:
      1. by the Licencee upon giving not less than sixty (60) days' notice to the Company expiring on any anniversary of the Acceptance Date after the expiry of any extended period for which the Licencee has agreed to retain the Company’s Services
      2. forthwith by the Company if the Licencee fails to pay any sum due hereunder within twenty (20) days of the due date
      3. forthwith by either party if the other commits any material breach of any term of this Agreement (other than one falling within 11.1.2 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty (30) days of a written request to remedy breach intimating an intention to terminate if breach is not remedied
      4. forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within 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 a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction)
    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 and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
    3. Subject to Clause 11.4 below within five (5) Working Days of the termination of this Agreement (the Licencee shall at the Company's sole option either return or destroy all copies of the Licenced Program Materials in its possession and control and a duly authorised officer of the Licencee shall certify in writing to the Company that the Licencee has complied with such obligation
    4. Notwithstanding the provisions of clause 11.3 above the Licencee shall be entitled for a period of six (6) years from the date of termination to keep one copy of the Licenced Program Materials free of charge in a fire-proof room for archival purposes If the Licencee uses any of the Licenced Programs other than for archival purposes it shall forthwith become liable to pay to the Company its then current charges for the use of the Licenced Programs or any equivalent software then licenced in substitution for the Licenced Programs
    5. The Company may terminate this Agreement by giving not less than 180 days' notice in writing to the Licencee expiring on any anniversary of the Acceptance Date but only where:-
      - The Licenced Programs are in the reasonable opinion of the Company obsolete and not capable of further Update, and
      - Where the Company offers to the Licencee an upgrade path to programs which replace the Licenced Programs where this is available

12. FORCE MAJEURE

    1. Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an "Event of Force Majeure")
    2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure
    3. If a default due to an Event of Force Majeure shall continue for more than six (6) weeks then the party not in default shall be entitled to terminate this Agreement Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure

13. WAIVER

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

14. NOTICES

Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by fax (such fax notice to be confirmed by letter posted within twenty-four (24) hours) to the address of the other party set out in this Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of forty-eight (48) hours after posting and (if sent by fax) upon the expiration of twelve (12) hours after dispatch

15. INVALIDITY AND SEVERABILITY

If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect

16. ENTIRE AGREEMENT

    1. The Company shall not be liable to the Licencee for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this Agreement other than those representations agreements statements or undertakings confirmed by a duly authorised representative of the Company in writing or expressly incorporated or referred to in this Agreement
    2. The Licencee accepts that the Licenced Program Materials were not designed and produced to its individual requirements and that it was responsible for their selection

17. ASSIGNMENT AND SUB-LICENSING

The Licencee shall not be entitled to assign this Agreement or any of its rights or obligations hereunder nor sub-licence the Use (in whole or in part) of the Licenced Program Materials without the prior consent of the Company

18. LAW

This Agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the Courts in England and Wales

 

Schedule 1. Definitions and Amendments

Part 1. Licenced Programs

Part 2. Designated Equipment

Part 3. Extent of Licence

Part 4. Amendment to Standard Agreement