In this Licence;
"ADDITIONAL CHARGES" means Datix's charges from time to time other than the Licence Fee for work undertaken on a time and materials basis together with any expenses reasonably incurred in the performance of such work.
"ANNUAL CHARGE" means the annual charge set out in the Quote for, firstly, the use of the Licensed Programs and, secondly, if this option is purchased, Customer-Support. The allocation of the Annual Charge between the use of the Licensed Programs and the Customer-Support shall be as set out in the Quote, failing which the element relating to Customer-Support shall be £500 per annum.
"COMMENCEMENT DATE" means such date as Datix shall install the Licensed Programs on the Designated Equipment or make available the Licensed Programs to the Customer, whichever is the sooner.
“CONFIDENTIAL INFORMATION” means the terms of this Licence along with any and all information or materials in any form or medium (whether written, oral, visual or electronic) disclosed directly or indirectly by either party or its employees or representatives to the other in connection with this Licence which is of a confidential or proprietary nature or is received in circumstances in which the receiving party knows or should know that the information is confidential including without limitation any financial and commercial information relating to the business of either party (and, in the case of Datix, any source code, the Licensed Programs, the Operating Instructions, manuals and any other procedures, systems, information or know-how arising out of or in connection with the Licensed Programs);
"CUSTOMER" shall mean the entity defined as such in the Quote but shall not include any parent, group, affiliated or related undertakings unless otherwise agreed in writing by Datix.
"CUSTOMER-SUPPORT" means such support as the Customer may purchase in connection with the Licensed Programs including: a) Fault rectification in accordance with clause 8 of and the Schedule to this Licence; and b) attendance by the Customer at such user groups and meetings that Datix may, in its absolute discretion hold from time to time; and c) any other support which Datix and the Customer shall agree in writing.
"DATIX" shall mean DATIX LIMITED of Melbury House, 51 Wimbledon Hill Road, Wimbledon, London, SW19 7QW.
"DESIGNATED EQUIPMENT" means a machine which meets or exceeds the Minimum Configuration recommended by Datix upon which the Licensed Programs are to be installed.
“EXISTING IPRs” means the IPRs in existence and belonging to a party prior to commencement of the Licence;
"FAULT" means a failure of the Licensed Programs to perform in accordance with the Operating Instructions which is present and is replicated in the copy of the Licensed Programs maintained by Datix for the purpose of supporting the Customer save in respect of any failure to perform which arises due to a failure by the Customer to follow the Operating Instructions.
"INITIAL CHARGE" means the fee set out in the Quote payable by the Customer on the Commencement Date for the use of the Licensed Programs.
"INTELLECTUAL PROPERTY RIGHTS" or “IPRs” means intellectual property rights and industrial property rights of any nature whatsoever including without limitation patents, patent applications, copyright, know-how, technical and commercial information, design (whether registered or unregistered), design rights, internet domain names, database rights, trademarks, service marks or business names, applications to register any of the aforementioned rights, trade secrets and rights of confidence, in each case in any part of the world and whether or not registered or registerable.
"LICENCE" means these terms and conditions together with the Quote and any other documents expressly incorporated by reference herein.
"LICENCE FEE" means the Initial Charge and the Annual Charges.
"LICENSED PROGRAMS" means the software programs in object code form identified in the Quote including any Update or other new software supplied from time to time and the Licensed Programs Database Structure.
"LICENSED PROGRAMS DATABASE STRUCTURE" means the whole or part of any database structure or schema or file format used by the Licensed Programs to store or access data input into the Licensed Programs.
"MINIMUM CONFIGURATION" means any minimum configuration advised by Datix to the Customer in the Quote or specified at http://forums.datix.co.uk/forum/index.php, as updated from time to time.
"NEW RELEASE" means any new version of the Licensed Programs issued by Datix which incorporates functionality which, in Datix's sole opinion, materially improves upon, or is additional to, the functionality of the then current version of the Licensed Programs. "OPERATING INSTRUCTIONS" (which expression includes any part or copy thereof) shall mean the instructions and procedures contained within the Licensed Programs.
"PERMITTED USERS" means either the specified individuals or specified category or group of users set out in the Quote, or users of the Licensed Programs at a Site which has a Site Licence, subject always to Datix’s right to reject an individual, category or group, at Datix’s discretion.
"PROCESSING", in relation to data, means obtaining, recording or holding that data or carrying out any operation or set of operations on such data.
"QUOTE" means any quotation issued by Datix which refers to Datix standard licence terms and conditions and which is accepted by the Customer.
"SITE" means that part of the Customer's undertaking set out in the Quote where the Licensed Programs are to be used.
"SITE LICENCE" means this Licence granted to a Customer for use on a Site, and which is identified as such in the Quote.
"SITE LICENCE ANNUAL CHARGE" means an Annual Charge which is neither (a) calculated according to the number of Permitted Users nor (b) subject to a specified maximum number of such users, and which is specified in the Quote.
"UPDATE" means a modification or addition by Datix to the then current version of the Licensed Programs which is not a New Release.
- Grant of Licence
2.1 Datix, in consideration of the payment by the Customer of the Licence Fee, hereby grants to the Customer a nonexclusive licence for the Permitted Users to use, solely for the purpose, and in accordance with the terms of the Licence, the Licensed Programs upon the Designated Equipment upon the terms and conditions of this Licence.
2.2 Notwithstanding the terms of clause 2.1, nothing in this Licence shall entitle the Customer (or the Permitted Users) to use the Licensed Programs for the purposes of Processing data for or on behalf of any third party.
- Property and Confidentiality in the Licensed Program Materials
3.1 The Customer shall:
3.1.1 keep confidential the Licensed Programs 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 Licensed Programs;
3.1.2 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 Datix in the Licensed Programs; and
3.1.3 inform all relevant employees agents and subcontractors that the Licensed Programs constitute Confidential Information of Datix and that all Intellectual Property Rights therein are the property of Datix and the Customer shall take all such steps as shall be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of this clause 3.
3.2 The Customer shall not;
3.2.1 assign sub-license transfer sell lease rent charge or otherwise deal in or encumber the Licensed Programs nor use on behalf of or make available the same to any third party nor use the same to provide services to any third party; or
3.2.2 subject to clause 4.6, decompile the whole or any part of the Licensed Programs from object code into source code or permit any software or other program to be written or developed based on or derived from the Licensed Programs or the Operating Instructions.
- Copying of the Licensed Programs
4.1 The Customer shall not copy the whole or any part of the Licensed Programs except in accordance with this clause 4.
4.2 The Customer shall be entitled to make one backup copy of the Licensed Programs and one copy of the Operating Instructions. Any such copies shall in all respects be subject to the terms and conditions of this Licence and shall be deemed to form part of the Licensed Programs.
4.3 The Customer shall reproduce on all copies of the Licensed Programs and Operating Instructions Datix's copyright and trade mark notices.
4.4 The Customer shall maintain an up-to-date written record of the copies of the Licensed Programs Operating Instructions, their location and date on which the copies were made, and upon request forthwith produce such record to Datix.
4.5 The Customer shall not be permitted to make or store more than one copy of the Licensed Programs and Operating Instructions without the prior written permission of Datix.
4.6 Save where necessary in accordance with the Copyright, Designs and Patents Act 1988, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Programs. Where the Customer intends to exercise any of its rights under the Copyright, Designs and Patents Act 1988, it shall notify Datix of the same so as to provide Datix the opportunity to supply alternative information which would achieve the same result for the Customer.
- Modification and Merger
5.1 The Customer shall not modify merge or combine the whole or any part of the Licensed Programs with any other software or documentation.
- New Releases
6.1 Datix may, from time to time notify the Customer that it has issued a New Release, however Datix is under no obligation to offer New Releases. If the Customer acquires a licence from Datix to use the New Release, the terms of this Licence shall (unless otherwise expressly agreed) apply to such New Release and references herein to the "Licensed Programs".shall be construed as references to the New Release. Without prejudice to the generality of the foregoing, the New Release may be subject to an Annual Charge which is in excess of the maximum increase permitted in clause 9.3 below. Any such revision to the Annual Charge shall be agreed in advance by the parties.
6.2 Notwithstanding that the Customer is not obliged to take up New Releases, the Customer acknowledges that it would be unreasonable to expect Datix to continue indefinitely its provision of the fault rectification services referred to in clause 8 or any other support or maintenance services in respect of earlier versions of the Licensed Programs.
6.3 Accordingly, where the Customer does not take up a New Release (or any subsequent New Release) within 12 months of the date on which Datix notifies the Customer in accordance with clause 6.1 that it has been issued, Datix may terminate its provision of fault rectification, support or maintenance services in respect of earlier versions of the Licensed Programs to the Customer on giving 30 days’ notice in writing, such notice to expire on or at any time after the expiry of such 12 month period.
- Intellectual Property Rights Indemnity
7.1 Datix warrants that its title to and property in the Licensed Programs is free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this Licence.
7.2 Subject to the limitations upon its liability in clause 12 below Datix will indemnify and hold harmless the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Licensed Programs by the Customer infringes the patent copyright registered design or trade mark rights of the said third party (an 'Intellectual Property Infringement') provided that the Customer:
7.2.1 gives notice to Datix of any Intellectual Property Infringement forthwith upon becoming aware of the same;
7.2.2 gives Datix the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express written instructions of Datix;
7.2.3 acts in accordance with the reasonable instructions of Datix and gives to Datix such assistance as it shall reasonably require in respect of the conduct of the said 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;
7.2.4 mitigates its losses so far as possible.
7.3 Datix shall have no liability to the Customer in respect of an Intellectual Property Infringement if the same results from any act or omission of the Customer.
7.4 In the event of an Intellectual Property Infringement Datix shall be entitled at its own expense and option either to:
7.4.1 procure the right for the Customer to continue using the Licensed Programs; or
7.4.2 make such alterations modifications or adjustments to the Licensed Programs that they become noninfringing without incurring a substantial diminution in performance or function; or
7.4.3 terminate this Licence by immediate notice in writing, in which case Datix's sole liability to the Customer shall be the refund to the Customer of the Annual Charge applicable to the unexpired portion of the year to which the Annual Charge then applies (calculated pro rata).
- Fault Rectification
8.1 Where the Customer has purchased Customer-Support, Datix shall, with effect from the Commencement Date and for the duration of this Licence, in accordance with the Service Level Agreement (set out in the Schedule to this Licence), rectify any Faults in the Licensed Programs which prevent the running of the Licensed Programs, upon request by the Customer and upon the submission if requested by Datix of documented Fault reports.
8.2 Rectification of Faults shall comprise all or any of the following:
8.2.1 the diagnosis of Faults in the Licensed Programs and the rectification of such Faults (remotely or by attendance on Site) by the issue of fixes, work arounds or an Update in respect of the Licensed Programs; and
8.2.2 the creation and despatch to the Customer from time to time at Datix's sole discretion of an Update to the Licensed Programs.
8.3 Rectification of Faults under this Licence shall not include the diagnosis or rectification of any Fault or defect resulting from:
8.3.1 the improper use operation or neglect of either the Licensed Programs or the Designated Equipment;
8.3.2 the modification of the Licensed Programs or their merger (in whole or in part) with any other software or the modification of any software on which the Licensed Programs depend;
8.3.3 the use of the Licensed Programs on equipment other than the Designated Equipment;
8.3.4 the failure by the Customer to implement recommendations in respect of or solutions to Faults previously advised by Datix;
8.3.5 any repair adjustment alteration or modification of the Licensed Programs by any person other than Datix without Datix's prior consent;
8.3.6 the operating system of the Designated Equipment or the configuration of any attached devices Including but not limited to terminals and printers;
8.3.7 the use of the Designated Equipment for running programs other than the Licensed Programs or the inadequacy of the Designated Equipment for running the Licensed Programs;
8.3.8 any configuration of the Licensed Programs capable of being carried out by the user;
8.3.9 the Customer's failure to Install and use upon the Designated Equipment any fixes of the Licensed Programs (including Updates) within 3 months of receipt of the same:
8.3.10 the use of the Licensed Programs for a purpose for which they were not designed; or
8.3.11 any breach by the Customer of any of the terms or conditions of this Licence.
8.4 Datix may upon request by the Customer provide support
(i) notwithstanding that the Fault results from any of the circumstances described in clause 8.3 above; or
(ii) related to matters other than Faults in the Licensed Programs. Datix shall in such circumstances be entitled to levy Additional Charges.
8.5 Without prejudice to clause 8.4 above Datix shall be entitled to levy reasonable Additional Charges if rectification of Faults is:
8.5.1 provided in circumstances where Datix reasonably considers the Customer's request to have been unnecessary;
8.5.2 related to matters which are explained in the Operating Instructions or in respect of which training is available but not taken up: 8.5.3
8.5.3 rendered more difficult or onerous due to (i) the non-availability, for whatever reason, of any remote diagnostic facility; (ii) the unsuitability of the Designated Equipment for running the Licensed Programs; or (iii) the presence on the Designated Equipment of any programs other than the Licensed Programs; or
8.5.4 provided for loss or damage caused directly or indirectly by operator error or omission.
8.6 Datix shall not be obliged to provide Fault rectification or any other goods or services connected with the use of the Licensed Programs:
8.6.1 where the Customer is in arrears with payment of the Initial or Annual Charge or any other payment due to Datix or is in breach of any term of this Licence; or
8.6.2 comprising the rectification of lost or corrupted data.
8.7 Where the Customer has not purchased Customer Support, Datix will, at Datix’s sole discretion:
8.7.1 repair or replace Licensed Programs which are defective; or
8.7.2 refund the purchase price of the Licensed Programs which are defective to the Customer; as long as the defect has been brought to Datix’s attention no more than 14 days from the date of purchase (or within such other time limit as Datix may agree). 8.8 The Customer shall in all cases:
8.8.1 communicate to Datix upon the date hereof the identity of the person(s) within its undertaking at the Site who shall act as the nominated contact point(s) and channel of communication in respect of the Licence, and performance of the obligations thereunder during the currency of this Licence. The Customer shall forthwith inform Datix of any change in the identity of any such person(s);
8.8.2 co-operate fully with Datix in diagnosing any Fault;
8.8.3 make available to Datix free of charge all reasonable facilities and services which are required by Datix to enable it to provide all envisaged services in connection with the Licence; and
8.8.4 not request, permit or authorise anyone other than Datix to provide any maintenance services in respect of the Licensed Programs.
- Fees and Charges
9.1 The Licence Fee and any other charge levied by Datix from time to time shall not include value added tax which shall be payable in addition by the Customer in the manner and at the rate from time to time prescribed by law.
9.2 The Annual Charge (together with value added tax thereon) shall become due annually on the Commencement Date and each anniversary thereof unless otherwise agreed by Datix and may be invoiced in advance by Datix and payable by the Customer within 30 days of the date of Datix's invoice therefore.
9.3 Datix shall be entitled to increase the Annual Charge once in any twelve month period following the anniversary of the Commencement Date in either of the following circumstances:
9.3.1 upon provision of at least 30 days’ written notice in the event of an increase in the costs of labour, materials, fuel or tax or any other thing outside of Datix’s control which results in an increase in the costs of providing the Licensed Programs or any related services identified in the Licence; and
9.3.2 no more than once in each successive 12 month period starting from Commencement Date, by an amount which does not exceed the greater of the percentage increase in RPI (as published by the United Kingdom Office for National Statistics from time to time) in the preceding 12 month period or 5%. The first such increase shall be based on the latest available figure for the percentage increase in RPI at the beginning of the last month before the first anniversary of the Commencement Date.
9.4 The Customer is not permitted to access data stored by the Licensed Programs via any software or program which does not form part of the Licensed Programs unless:
9.4.1 Datix has given its prior written permission to the Customer; or
9.4.2 the Licence granted to the Customer is a Site Licence.
9.5 If Datix reasonably suspects that the Customer has accessed data other than in accordance with clause 9.4, Datix shall be entitled to increase the Annual Charge and, if the Customer is not then subject to a Site Licence Annual Charge, then Datix may alter the Customer's then Annual Charge to a Site Licence Annual Charge. Datix shall notify the Customer of the new amount payable by the Customer. Where Datix so notifies the Customer, the Customer shall have the right to terminate this Licence by notice to Datix in writing within 30 days of the date of Datix’s notification, otherwise the new amount shall be deemed to have been accepted by the Customer.
9.6 Additional Charges shall be invoiced by Datix monthly in arrears and shall be payable by the Customer (together with value added tax thereon) within 30 days of the date of an invoice therefor.
9.7 The Customer shall keep records of the number of employees who are, from time to time, Permitted Users during the term of this Licence, and the nature of their use of the Licensed Programs, and shall disclose and certify those records on request by Datix. Datix shall have the right, at its sole discretion to revoke permission to use the Licensed Programs in respect of any Permitted User.
9.8 If the Customer permits the use of the Licensed Programs by more Permitted Users than any maximum number set out in the Quote, then, without prejudice to any other rights Datix may have, Datix may levy Additional Charges according to Datix's then current standard charges per additional Permitted User.
9.9 Datix reserves the right to charge the Customer interest in respect of the late payment of any sum properly payable under this Licence (after as well as before judgement) at the rate of four per cent per annum above the base rate from time to time of Barclays Bank PLC from the date due therefor until payment.
10.1 Each of the parties hereto undertakes to the other to keep confidential all Confidential Information (written or oral) or arising out of or in connection with the Licence (whether prior to or during the terms of the Licence) save that which is:
10.1.1 already in its possession other than as a result of a breach of this clause; or
10.1.2 in the public domain other than as a result of a breach of this clause. Each of the parties undertakes to the other to take all such steps as shall from time to time be reasonable to ensure compliance with the provisions of this clause by its employees agents and subcontractors. Save that the Customer shall remain principally liable for any breaches of the obligations in this clause by its employees, agents or sub-contractors.
10.2 Neither party may use the name of the other in any advertising or publicity relating to the Licensed Programs without the prior written consent of the other, save that Datix may use the name of the Customer for promotional purposes in any announcement made within six months of the Commencement Date or in any list of users used by Datix.
The Customer shall not, during the period of this Licence or within one year of the date of its termination, knowingly employ or make any offer of employment or assist any other person to employ or make any offer of employment to any person who is at the time of the offer employed by Datix or has been employed by Datix during the preceding twelve months. This limitation shall not apply to an employee who applies for an advertised position with the Customer which is not brought to the employee’s attention by or on behalf of the Customer. Any breach of this provision shall be a fundamental breach of this Licence entitling Datix to terminate this Licence forthwith and the Customer shall indemnify Datix against all loss damage cost expenses claims and proceedings which Datix may suffer as a result of such breach.
- Limitation of Liability
12.1 The following provisions set out Datix's entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Customer.
12.2 If Datix by its negligence causes injury or death of any person, its liability (if any) for such injury or death shall not be limited.
12.3 if Datix by its negligence or otherwise is responsible for damage to or loss of any physical property, its liability in respect of any one event or series of connected events will not exceed £30,000.00 (thirty thousand pounds).
12.4 In all cases other than those referred to in clauses 12.2 and 12.3, Datix's liability arising in connection with all claims arising under or pursuant to this Licence during any complete 12 month period commencing on the date of this Licence, or any anniversary thereof, however arising whether in contract, tort (including negligence) or otherwise will not in any such period exceed 125% of the then current Annual Charge.
12.5 Subject to clauses 12.1 to 12.4 inclusive, Datix shall not be liable under or in relation to this Licence (whether such liability arises due to negligence, breach of contract, misrepresentation or otherwise) for any:
12.5.1 indirect, special or consequential loss or damage;
12.5.2 loss of profits;
12.5.3 loss of sales;
12.5.4 loss of goodwill;
12.5.5 loss of contract;
12.5.6 loss of savings;
12.5.7 loss of opportunity;
12.5.8 loss or corruption of data;
12.5.9 reliance on any report or data which is entered into or extracted out of the Licensed Programs by the Customer;
12.5.10 reliance on the Licensed Programs by the Customer to meet any of the Customer’s legal obligations under any law or regulation (including, without limitation, health and safety law);
12.5.11 as a result of any breach of the Licence, or any negligent act or omission of the Customer.
12.6 The Customer hereby agrees to afford Datix not less than six months (following notification thereof by the Customer) in which to remedy any breach by Datix of this Licence.
12.7 Datix shall have no liability to the Customer in respect of any breach of this Licence or for any representation statement or tortious act or omission unless the Customer shall have served notice of the same upon Datix within six months of the date it became aware of it or the date when it ought reasonably to have become so aware.
12.8 Datix does not warrant that the use of the Licensed Programs will meet the Customer's data processing requirements or that the operation of the Licensed Programs (including where in machine-readable form the Operating Instructions) will be uninterrupted or error free.
12.9 The Customer acknowledges that:
12.9.1 it will comply with all laws, rules and regulations (including any rules, codes of conduct or regulations which apply to the Customer’s particular business or industry);
12.9.2 the Licensed Programs have not been prepared to meet the Customer’s individual requirements;
12.9.3 it is the Customer’s responsibility to ensure that the Licensed Programs are fit for the Customer’s purposes and will perform adequately with any other software or program which the Customer uses; and
12.9.4 it is solely responsible for the content of any reports which are generated by the Licensed Programs and that it is the Customer’s responsibility to ensure that reports generated are adequate for the Customer’s needs and purposes; and
12.9.5 any data which is inputted by the Customer into any database operated by the Licensed Programs shall be in accordance with any instructions given by Datix, and shall be inputted accurately and properly.
12.10 The Customer acknowledges that the provisions of this clause 12 are, taking into account all the circumstances and the ability of the parties to obtain insurance, reasonable in every respect.
12.11 The provisions of this clause 12 shall survive any termination of the Licence.
13.1 This Licence may be terminated:
13.1.1 by either party at any time on or after the fifth anniversary of the Commencement Date upon giving not less than three months' notice in writing to the other party expiring on an anniversary of the Commencement Date;
13.1.2 forthwith without notice by Datix if the Customer fails to pay any sum due hereunder within 60 days of the due date therefore or is in serious breach of this agreement;
13.1.3 forthwith without notice by the Customer if Datix fails to remedy any breach of this Licence within the timescale set out in clause 12.6 above;
13.1.4 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 1 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 or could be 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) or anything equivalent to any of the events or circumstances stated in this clause 13.1.4 occurs in any applicable jurisdiction.
13.2 Within thirty days of the termination of this Licence (howsoever and by whomsoever occasioned) the Customer shall destroy all copies of the Licensed Programs and Operating Instructions in its possession and a duly authorised officer of the Customer shall certify in writing to Datix that the Customer has complied with such obligation and Datix shall be entitled to inspect the Customer's premises to ensure that this clause has been complied with. 13.3 Any termination of this Licence pursuant to the terms hereof 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 hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
- Ownership and Intellectual Property Rights
14.1 Each party shall retain ownership of its own Existing IPRs.
14.2 Datix shall be entitled to all property, copyright and other IPRs arising out of or in connection with the Licence, the Licensed Programs (including the use thereof by the Customer) during the Licence (“New IPRs”) and the Customer hereby, as beneficial owner, assigns with full title guarantee (and by way of present assignment of future copyright) absolutely to the fullest extent possible to Datix.
14.3 The Customer shall procure that, where relevant, all moral rights in respect of the New IPRs are waived by the relevant third parties and at the request and reasonable expense of Datix, shall do and/or shall procure that its consultants employees agents contractors and sub-contractors shall do all such things and sign all such documents or instruments necessary in the opinion of Datix to enable Datix to obtain defend and enforce its rights in the New IPRs.
14.4 The Customer agrees that Datix shall be entitled to use any know-how, ideas, methods, processes or techniques which relate to any developments arising out of the provision of or in connection with the Licence for the purposes of Datix’s business from time to time provided that Datix does not use any Confidential Information belonging to the Customer for that purpose.
14.5 The provisions of this clause 14 shall survive the expiry or termination of this Agreement
- Data Protection and Freedom of Information
15.1 To the extent that any data or information belonging to the Customer is personal data within the meaning of the Data Protection Act 1998 (“Act”), Datix warrants that it will:
15.1.1 process such data and information only in accordance with the Customer’s instructions or to the extent required to perform its obligations under the Licence;
15.1.2 not transmit such data and information to a country or territory outside the European Economic Area without the Customer’s express consent; and
15.1.3 take such technical or organisational measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate.
15.2 The Customer agrees that it will provide Datix with all reasonable assistance in connection with any information request under the Freedom of Information Act 2000 (“FOIA”) which Datix receives in connection with the Licence and shall co-operate with Datix and shall use its best endeavours to respond within ten working days of Datix’s request for assistance in determining whether or not an exemption to the FOIA applies.
15.3 The Customer acknowledges and agrees that, where the Customer receives an information request in connection with the Licence, the Customer will immediately notify the same to Datix, and, where the information request refers to Datix’s commercially sensitive information or Confidential Information, the Customer will allow Datix sufficient time to raise an objection to the extent, type or nature of disclosure requested, and will work with Datix to agree the form of disclosure.
- Order of Precedence
In the event of any conflict between the terms of the Quote and these terms and conditions, the terms of the Quote shall prevail.
- Force Majeure
Neither party will be liable for delay in or failure to perform obligations (other than payment obligations) if that delay or failure is caused by circumstances beyond the control of the party including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority.
18.1 Any notice request instruction or other document to be given hereunder shall be in writing to the address of the other party set out in this Licence or such other address as may have been notified by it to the other and shall be deemed to have been served:
18.1.1 immediately if served in person;
18.1.2 upon proof of delivery if served by post or upon proof of successful transmission if by facsimile, save that delivery shall be deemed to take place on the next business day for deliveries at the weekend or after 5pm.
The waiver by either party of a breach or default of any of the provisions of this Licence by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions of this Licence 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.
- Entire Agreement
20.1 This Licence together with any relevant Quote constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.
20.2 Each party acknowledges that, in entering into this Licence, it is not relying on, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party to this Licence.
20.3 Nothing in this Licence shall exclude or limit the liability of either party arising out of fraud, fraudulent misrepresentation or fraudulent concealment.
This Licence shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
Neither party shall be entitled to assign this Licence nor all or any of their rights and obligations, hereunder without the prior written consent of the other.
- Rights of Third Parties
The Contract (Rights of Third Parties) Act 1999 shall not apply to this Licence. A person who is not a party to this Licence shall not be entitled to enforce any term of this Licence which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties. Any such agreement by the parties must refer to this clause 23.
24.1 If any clause in this Licence, or any part of a clause, is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, and the clause (or part-clause) in question is not of a fundamental nature to the Licence as a whole, the legality, validity or enforceability of the remainder of the Licence (including the remainder of the clause which contains the relevant provision) shall not be affected.
24.2 if the foregoing applies, the parties shall use all reasonable endeavours to agree upon any lawful and reasonable variations to the Licence which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the clause, or the partclause, in question.
25.1 Datix shall be entitled to amend the terms set out in the Licence upon provision of no less than 30 days’ written notice to the Customer.
25.2 Save in respect of clause 25.1 above, no variation of this Licence shall be valid unless it is in writing and signed by or on behalf of each of the parties.
- Import/Export Controls
Where the Customer is not located in England or Wales, the Customer will be deemed to be the importer and/or exporter of record in connection with the Licensed Programs. The Customer will be responsible for payment of all import and/or export duties (as apply in the circumstances) in connection with the supply of the Licensed Programs to the Customer, and the Customer will comply with all applicable export and import laws, regulations and orders from time to time in force.
Headings to clauses in this Licence are for the purpose of information and identification only and shall not be construed as forming part of this Licence.
This Licence shall in all respects be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.