IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Data Development Services Limited of 1 The Pavilions, Cranmore Drive, Shirley, Solihull, West Midlands, B90 4SB (registered company number 2942406) (Licensor, us, our or we) for this GS Onestop System software product (Software), which includes computer software and any data supplied with it, associated media, printed materials and/or electronic documentation (Documentation).
THIS SOFTWARE REQUIRES A PERSONAL COMPUTER / LAPTOP (MINIMUM PENTIUM 4, DUAL CORE RECOMMENDED) WITH A MINIMUM OF 1 GIGABYTE OF MEMORY (2 – 4 GIGABYTES RECOMMENDED) AND A WINDOWS XP, VISTA, 7 (32 AND 64 BIT) OPERATING SYSTEM (WINDOWS 7 IS RECOMMENDED) . THE SOFTWARE REQUIRES A MINIMUM OF 100MB FREE DISK SPACE (WITH ADDITIONAL CAPACITY AS THE CORE DATA INCREASES) BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW BY CLICKING ON THE "REJECT" BUTTON BELOW. IF YOU DO THIS ANY LICENCE FEE WHICH HAS BEEN PAID WILL BE REFUNDED.
1. GRANT AND SCOPE OF LICENCE
1.1 In consideration of the payment of the monthly licence fee and any other fees (in the manner and at the rate agreed between the parties) (Licence Fee) and you agreeing to abide by the terms of this licence, we hereby grant to you a non-exclusive, non-transferable licence to use the Software and the Documentation in the UK on the terms of this Licence subject to the termination provisions in condition 7.
1.2 You may:
(a) Download, install and use the Software for your internal business purposes only, either (as agreed between the parties):
(i) on one CPU if the Licence is a single-user licence or the Software is for single use; or
(ii) if the Licence is a multi-user or network licence, for the number of concurrent users agreed between you and us;
(b) make one copy of the Software for back-up purposes only, provided that this is necessary for the activities permitted by condition 2.1;
(c) receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by us from time to time;
(d) use any Documentation in support of the use permitted under condition 1.1 and make up to two copies of the Documentation as is reasonably necessary for its lawful use.
2. LICENSEE'S UNDERTAKINGS
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program;
(ii) is not disclosed or communicated without our prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;
(g) to replace the current version of the Software with any updated or upgraded version or new release provided by us under the terms of this Licence immediately on receipt of such version or release;
(h) to include our copyright notice on all entire and partial copies of the Software in any form;
(i) not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than your employees without prior written consent from us;
(j) not to use the Software via any communications network or by means of remote access.
2.2 You must permit us and our representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.
3. BACK-UP AND SUPPORT
3.2 If we agree (subject to separate payment terms) to provide archiving services during the term of this Licence (Back-up Services), which includes archiving the data inputted by you and your employees for the purpose of using the Software (Licensee Data). In such circumstances, we endeavour to follow our archiving procedure for Licensee Data as set out in the Documentation (as amended by us in our sole discretion from time to time).
3.3 You shall:
(a) provide us with all necessary access to such information as may be required by us in order to render the support obligations and any archiving obligations in this condition, including but not limited to Licensee Data, security access information and configuration services; and
(b) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
3.4 You shall own all rights, title and interest in and to all of the Licensee Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data.
3.5 In the event of any loss or damage to Licensee Data (where condition 3.2 applies), your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Licensee Data from the latest back-up of such Licensee Data maintained by us in accordance with the archiving procedure described in condition 3.2 above. We shall not be responsible for any loss, destruction, alteration or disclosure of Licensee Data caused by any third party (except those third parties sub-contracted by us to perform services related to Licensee Data maintenance and back-up).
3.6 We shall, if providing the Back-up Services, comply with our privacy and security policy relating to the privacy and security of the Licensee Data as set out in the Documentation, as such document may be amended from time to time by us in our sole discretion.
3.7 If we process any personal data on your behalf when performing our obligations under this Licence, the intention is that you shall be the data controller and we shall be a data processor and in any such case:
(a) you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Licence on your behalf;
(b) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(c) we shall process the personal data only in accordance with the terms of this Licence and any lawful instructions reasonably given by you from time to time; and
(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
3.8 Where we have not agreed with you to provide Back-up Services (see condition 3.2 above), we shall not be obliged to provide any Back-Up Services and we shall not be liable to you for any failure by you to arrange for the Licensee Data to be backed-up and/or for any loss or damage to Licensee Data.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
4.2 You acknowledge that you have no right to have access to the Software in source code form.
4.3 The integrity of this Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
5.1 Subject to condition 5.6 below, we warrant that:
(a) during the term of this Licence the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and the Documentation correctly describes the operation of the Software in all material respects; and
(b) we have tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice.
5.2 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
5.3 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
5.4 If, within the term of this Licence , you notify us in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Licence, we will, at our sole option, repair or replace the Software, provided that you make available all information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable us to recreate the defect or fault.
5.5 Our obligation under condition 5.4 is subject to compliance by you with the terms of condition 2.1(g).
5.6 For the avoidance of any doubt we shall not be liable for any breach of the warranties contained in condition 5.1 where any failure of the Software to perform substantially in accordance with the Documentation arises as a result of:
(a) you having amended the Software or used it in contravention of the terms of this Licence; or
(b) the presence of any viruses or third party software on your operating system(s).
6. THIRD PARTY PROVIDERS
6.2 You acknowledge that the Software may incorporate, or include as a plug-in, software and/or data belonging to third parties (for example, a Royal Mail postcode look up facility). We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such third-party material. You also acknowledge that you will abide by the terms of any additional end-user licence relating to the use of such material.
7. OUR LIABILITY
7.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or deliberate personal repudiatory breaches of this agreement.
7.2 Subject to condition 7.1, we shall not be liable for the following categories of losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, even if such losses result from our deliberate personal repudiatory breach of this agreement:
(a) loss of income;
(b) loss of business profits or contracts;
(c) business interruption;
(d) loss of the use of money or anticipated savings;
(e) loss of information;
(f) loss of opportunity, goodwill or reputation;
(g) loss of, damage to or corruption of data; or
(h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 7.2 shall not prevent claims for foreseeable loss of or damage to your tangible property that fall within the terms of condition 5 or any other claims for foreseeable direct financial loss that are not excluded by any of categories (a) to (h) inclusive of this condition 7.2.
7.3 Subject to condition 7.1 and condition 7.2, our maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to 120% of the Licence Fee paid by you during the preceding 12 months.
7.4 Subject to condition 7.1, condition 7.2 and condition 7.3, our liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
7.5 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
8. TERM AND TERMINATION
8.1 This agreement shall, unless otherwise terminated as provided in this condition 8, commence on the date of download of the Software and shall continue until:
(a) We or you give at least 90 days’ prior written notice of termination to the other in which case this Licence shall terminate upon the expiry of the 90 days referred to; or
(b) otherwise terminated in accordance with the provisions of this Licence.
8.2 We may terminate this Licence immediately by written notice to you if:
(a) The Licence Fee remains outstanding for a period of 30 days beyond its agreed due date;
(b) You commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so; or
(c) a petition for a bankruptcy order to be made against you has been presented to the court; or
(d) you (where you are a company) become insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for your winding-up, have a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of your assets, make any composition or arrangement with your creditors or take or suffer any similar action in consequence of your debt, or become unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986).
8.3 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must cease all activities authorised by this Licence;
(c) you must immediately pay to us any fees due to us ; and
(d) you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to us (at our option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
9. TRANSFER OF RIGHTS AND OBLIGATIONS
9.1 This Licence is binding on you and us and on our respective successors and assigns.
9.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
9.3 We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Licence.
11. EVENTS OUTSIDE OUR CONTROL
11.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an event outside our reasonable control (Force Majeure Event).
11.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks;
(f) the acts, decrees, legislation, regulations or restrictions of any government.
11.3 Our performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. The parties will use their reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which their obligations under this Licence may be performed despite the Force Majeure Event.
12.1 If we fail, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
12.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
12.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
14. ENTIRE AGREEMENT
14.1 This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
14.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
14.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Licence.
15. THIRD PARTY RIGHTS
15.1 Neither of us intends that any part of this Licence shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.2 For the avoidance of doubt, the payment of any Licence Fee by a third party on your behalf is not intended to affect our obligations to you under this Licence, nor is it intended to fix such third party with any of our obligations to you under this Licence.
16. LAW AND JURISDICTION
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.