Deeplake Ltd - Standard Terms and Conditions of Supply
End User Licence and Support Agreement
By using the Software and Documentation supplied to you by PARTNER (“the Licensor”), you (“the Licensee”) accept and agree to be bound by the following Licence which sets out the terms upon which the Licensor will licence, support and maintain the Software defined below:
1. Licence and Support
(1) In consideration and upon receipt by the Licensor in cleared funds of payment by the Licensor of the licence fee specified in the attached Contract Information and Signature Form (“the Licence Fee”) the Licensor shall grant to the Licensee a non-exclusive, non-transferable licence for a term of five (5) years commencing on, and including, the date of such payment (“the Commencement Date”) to use the CMGR software supplied in object code form with this Licence (“the Software”) and/or any accompanying documentation (“the Documentation”) on and in conjunction with suitable equipment subject to the terms and conditions of this Licence.
(2) The Licensee shall use the Software for its own business purposes only and the Licensee shall not sub-licence any rights granted to it under this Licence nor permit any third party to use the Software and/or Documentation.
(3) In consideration of the Annual Charge and the SMS Gateway Service Charge to be paid by the Licensee to the Licensor in accordance with clause 6 of the Support Agreement, the Licensor will provide the support and SMS Gateway services described.
2. Warranty
(1) The Licensor warrants that the Software will for 90 days after delivery provide substantially the facilities and functions described in the Documentation when used on suitable equipment. Any claim by the Licensee under this warranty must be promptly notified to the Licensor in writing and no claim will be valid if made more than 90 days after delivery. For the avoidance of doubt, the Licensor does not guarantee that the Software or Documentation is free from minor errors not materially affecting its performance.
(2) The Licensor shall have no liability or obligations under this Licence other than to remedy breaches of the warranty by, at its discretion, providing replacement Software and Documentation or a refund of the licence fee paid by the Licensee, within a reasonable time and without charge to the Licensee.
(3) The Licensee acknowledges that the Software has not been prepared to meet the Licensee’s individual requirements and that it is therefore the responsibility of the Licensee to ensure that the facilities and functions of the Software and Documentation meet its own requirements.
(4) Except as expressly provided in this Licence no warranty condition undertaking or term express or implied statutory or otherwise as to the condition quality performance merchantability or fitness for purpose of the Software and/or Documentation is given by the Licensor and all such warranties conditions undertakings and terms are hereby excluded to the fullest extent permitted by law.
(5) The Licensee acknowledges that no representations were made prior to entering into this Licence. The Licensee agrees that, in entering into this Licence, it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Licence. The Licensee shall have no remedy in respect of any representation (whether written or oral) made to it upon which it relied in entering into this Licence and the Licensor shall have no liability otherwise than pursuant to the express terms of this Licence.
3. Proprietary Rights
(1) The copyright and other intellectual property rights of whatever nature in the Software and/or Documentation shall not pass to the Licensee.
(2) The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Software and/or Documentation by any person.
(3) The Licensee will permit the Licensor to check the use of the Software and/or Documentation by the Licensee at all reasonable times and for that purpose the Licensor’s representatives shall be entitled to enter any of the Licensee’s premises (and so that the Licensee hereby irrevocably licenses the Licensor its employees and agents to enter any such premises for such purpose).
(4) If the Software becomes the subject of any claim that its use infringes any third party patent design right trade secret or copyright, the Licensor may at its option:
(i) obtain for the Licensee the right to continue to use the Software; or
(ii) replace or modify the Software so that it becomes non-infringing; or
(iii) accept return of the Software and refund to the Licensor the price paid by the Licensor for the Licence granted under this Agreement.
(5) The Licensor will have no liability under this clause for:
(i) any infringement arising from the combination of the Software with other products; or
(ii) the modification of the Software.
4. Copying and Disclosure
The Licensee may make only such copies of the Software as are necessary for back up purposes. The Licensee will record the number and location of all copies of the Software and take steps to prevent unauthorised copying. No copies may be made of the Documentation or any part of it. The Licensee may not disclose the Software or Documentation to any third party, nor remove or obscure the copyright and other proprietary notices from the Software or Documentation.
5. Security and Control
The Licensee shall during the continuance of the Licence:
(1) effect and maintain adequate security measures to safeguard the Software and/or Documentation from access or use by any unauthorised person;
(2) retain the Software and/or Documentation and all copies thereof under the Licensee’s effective control;
(3) maintain a full and accurate record of the Licensee’s copying and disclosure of the Software and/or Documentation and shall produce such record to the Licensor on request from time to time.
6. Alterations
Except to the extent, if any, permitted by law, the Licensee shall not alter, modify, reverse engineer, reverse compile or reverse assemble the whole or any part of the Software and/or Documentation in any way whatsoever and shall not permit the whole or any part of the Software to be combined with or become incorporated in any other program.
7. Termination
(1) The Licensor may terminate the Licence forthwith by notice in writing to the Licensee if the Licensee commits any breach of any term in the Licence (including, without limitation, any term of the Schedule) and (in the case of a breach capable of being remedied) shall have failed within 30 days after the receipt of the request in writing from the Licensor so to do to remedy the breach.
(2) On any breach by the Licensor the Licensee may terminate the Licence at any time by giving not less than ninety (90) days’ notice in writing to the Licensor.
(3) This Licence shall in any event terminate automatically on the fifth anniversary of the Commencement Date.
(4) Forthwith upon the termination of the Licence the Licensee shall return to the Licensor the Software and Documentation and all copies of the whole or any part thereof and shall immediately pay to the Licensor any sums due to the Licensor under this Licence (including without limitation pursuant to the Schedule).
(5) Any termination of the Licence howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof. For the avoidance of doubt, the Licensee shall not be entitled on termination to a refund of all or any part of the Support Charge or any SMS Gateway Service Charge.
8. Limitation of Liability
IN NO EVENT SHALL THE LICENSOR OR ITS SUPPLIERS BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) FOR BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER ECONOMIC LOSS ARISING FROM THE USE OF OR THE INABILITY TO USE THE SOFTWARE OR THE DOCUMENTATION, EVEN IF LICENSOR OR ITS SUBPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF THE FAILURE OF ANY EXCLUSIVE REMEDY. Without limiting the foregoing, the collective maximum aggregate liability of the Licensor or any third party to the Licensee, or to any person claiming rights through the Licensee or any third party, in respect of any and all claims arising from or related to this Licence, in contract, tort, for breach of statutory duty or otherwise, will be a sum equivalent to 125% of the Licence Fee. THE LICENSEE UNDERSTANDS AND ACKNOWLEDGES THAT THE PRICING OF THE LICENCE AND SUPPORT FOR THIS SOFTWARE AND DOCUMENTATION IS PREDICATED ON THE INCLUSION AND ENFORCEMENT OF CLAUSES 2, 8 and 9. The exclusions in this clause 8 and in clause 2 shall apply to the fullest extent permissible at law but the Licensor does not exclude liability for death or personal injury caused by the negligence of the Licensor, its officers, employees, contractors or agents, for fraud, for breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982 or for any other liability which may not be excluded by law.
9. Disclaimer
Subject to clause 2, the Licensor does NOT warrant that the Software or Documentation will be complete, error free or compliant with any particular standards, laws or regulations; will meet the Licensee’s needs; has been subjected to any particular testing or review by the Licensor; or will operate without interruption. Nor does the Licensor warrant that the Software will perform in the case of hardware malfunction, misuse of the Software or use of the Software with other software not described in the Documentation. ANY USE BY THE LICENSEE OF THE SOFTWARE AND DOCUMENTATION IS AT THE LICENSEE’S OWN RISK.
10. Assignment
The Licensee shall have no right to sub-license or to assign the benefit or burden of this Licence in whole or in part or to allow the Software to become the subject of any charge, lien or encumbrance without the prior written consent of the Licensor. The Licensor may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this Licence.
11. Force Majeure
Neither party shall be liable for any failure to perform any or all of its obligations hereunder if such failure shall be due to any circumstances beyond the reasonable control of that party including (without limitation) acts of God or fire flood strike or labour disputes civil commercial sabotage statute order or any regulation of any government public or local authority.
12. Waiver
The failure by the Licensor to enforce at any time any one or more of the terms and conditions of this Licence shall not be a waiver of those terms or conditions or of the right at any time subsequently to enforce the terms and conditions of this Licence.
13. Entire Agreement
This Licence constitutes the entire agreement between the parties relating to the subject matter hereof. Subject to clause 16, additions to or modifications of any provision of this Licence shall be binding on the parties only if made in writing and signed by a duly authorised representative of each of the parties.
14. Notices
All notices which are required to be given hereunder shall be in writing and sent to the last address of the recipient notified by it to the other party Any such notice may be delivered personally or by first class pre-paid letter telex or facsimile transmission and shall be deemed to have been served if by hand when delivered if by first class post seven days after posting and if by telex or facsimile transmission when despatched.
15. Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.
16. Third Parties
Save that the Licensor’s own licensor may enforce the terms and conditions of this Licence as if it were the Licensor (and no variation of this Licence shall be made without the prior written consent of the Licensor’s own licensor) a person who is not a party to this Licence has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17. Severability
In the event that any provision of this Licence is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either you or us from any relevant competent authority, we shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or, at our discretion, such provision may be severed from this Licence and the remaining provisions of this Licence shall remain in full force and effect
DEEPLAKE SUPPORT AGREEMENT
Terms & Conditions
1. Interpretation
The following expressions shall have the following meanings: -
“ Deeplake”: means Deeplake Limited whose registered office is 1 High St, Knaphill, Woking, Surrey GU21 7YG;OX10 8BA, UK.
“Gateway Services” the service provided by Deeplake by which text messages are passed to and from the Software,
"Licensee" the person, firm or company that has placed an Order.
“Hosted Services” the operation of the Software by Deeplake on behalf of customers utilising Deeplake equipment and staff.
“Monitoring” the service and software included in each installation by which the Software can be remotely monitored for faults and performance,
"Number of Properties" the number of Housing Properties Under Management for which the Software is Licensed.
"Order" any purchase order issued by the Licensee for software and/or services from Deeplake.
"Quotation" any quotation for the supply of Software or Services issued by Deeplake.
"Services" the Services specified in the Order Form and set out in this Software Maintenance and Technical Support Agreement.
"Site" the location for which the Software may be used identified in the Quotation/Order.
"Software" each Deeplake software program provided by Deeplake, including software in which Deeplake has sub-licensing rights, in executable, machine readable, object, printed or interpreted form, including any Software Protection Device and any documentation, modifications, improvements or updates supplied to the Licensee under any Quotation or Order.
"Software Licence" the Software Licence supplied separately by Deeplake.
“Support Hours” 9:00am to 17:30 Monday to Friday excluding Public Holidays
1. Application Of Terms
1.1 These Terms shall apply to all Software and Services supplied by Deeplake under any Order placed by the Licensee. In the event of any ambiguity between these terms and the provisions of the Terms and Conditions of Sale and the Software Licence Agreement, the terms of the relevant Agreement shall apply. Deeplake shall provide support for the current and previous released versions of the Software as notified from time to time.
2. Support Terms
2.1 The Licensee is required to enter into this Software Maintenance and Technical Support Agreement by placing an Order for it at the same time as placing an Order for the first year of use of the Software Licence at the costs provided in the Quotation. On the third anniversary of the delivery of the Software the Licensee may enter into an additional years Software Licence and Technical Support Agreement by placing a purchase order upon Deeplake. The Licensee will be invoiced for the Services annually in advance.
3. Fees
3.1 The Service Fee will be a sum in accordance with the then current rates charged by Deeplake.
3.2 Travel and any accommodation expenses for additional services which are not covered by the terms of this Agreement will be charged at Deeplake's then current rates.
4. Payment
4.1 Without prejudice to the Terms if the Licensee is more than 30 days late in the payment of any sum due to Deeplake pursuant to this Agreement or any other Agreement between Deeplake and the Licensee Deeplake may at its discretion suspend performance under this Agreement or any other related agreements after 10 days from the date of written notice of suspension.
4.2 Fees paid in advance, net of any amounts due to Deeplake from the Licensee (under any agreements then in force) will be refunded to the Licensee on a pro rata basis in the event that Services provided hereunder are terminated for any reason other than non-payment of the fee.
5. Description of the Support and Maintenance Services
5.1 Customer Support Services
5.1.1 Deeplake will provide advice by telephone, letter, fax or e-mail on the use of the Software.
5.1.2 Deeplake will use all reasonable endeavours to respond to requests for Software application advice within 1 working day.
5.1.3 Support shall be available during Support Hours.
5.2 Software Maintenance Services
5.2.1 Deeplake will provide Software maintenance, which will be limited to the correction of errors in the Software, procedural documents and other basic information, supplied with the Software. The said Software maintenance will be carried out as set out in 5.2.2 and 5.2.4 below.
5.2.2 Deeplake will periodically provide the Licensee with a report of all significant errors and corrections for the Software covered by this Agreement.
5.2.3 Errors discovered by the Licensee must be reported by a designated representative of the Licensee through the reporting mechanisms by Deeplake and must include all required supplemental documentation.
5.2.4 Deeplake will use all reasonable endeavours to respond to the Licensee with an action plan to resolve the problem within 5 working days of an adequately completed Report and production of all required supplemental documentation.
5.2.5 Monitoring shall be implemented for each deployment of the Software to allow remote and timely diagnosis of faults in the software.
5.3. For the avoidance of all doubt Software Maintenance Services shall not include the diagnosis and rectification of any fault arising from:
5.3.1 the improper use, operation or neglect of either the Software or the Licensed Equipment
5.3.2 The modification of the Software or its merger (in whole or in part) with any other software;
5.3.3 Unless otherwise agreed by Deeplake in writing the use of the Software on equipment other than the Licensed Equipment;
5.3.4 The failure by the Licensee to implement recommendations in respect of the solutions and faults previously advised by Deeplake;
5.3.5 Any repair, adjustment, alteration or modification of the Software by any person other than Deeplake without Deeplake's prior written consent;
5.3.6 Any breach by the Licensee of its obligations under this Agreement or the Licence;
5.3.7 The Licensee's failure to install and use on the Licensed Equipment in substitution for the previous release any new release of the Software within 90 days of receipt of the same;
5.3.8 The use of the Software for a purpose for which it was not designed;
5.4 Deeplake may on the request of the Licensee provide support notwithstanding that the fault results from any circumstances described in clause 5.3 above or that the support requested is not covered by the terms of this Agreement. Deeplake shall in such circumstances be entitled to charge for such service at Deeplake's rates from time to time for work undertaken on a time and materials basis or fixed quote at the discretion of Deeplake.
5.5 Without prejudice to clauses 5.3 and 5.4 above Deeplake shall be entitled to levy reasonable charges if support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee's request to have been unnecessary.
5.6 Software Support Services
5.6.1 Deeplake agrees to provide the Licensee with the following Software support services with respect to the Software:
5.6.2 Deeplake will provide the Licensee with all Software and related documentation for all enhancements (defined as new features, capabilities and operational characteristics) completed and implemented during the term of this Agreement;
6 Gateway Services
6.1 The Software sends and receives communications via the Gateway Services provided by Deeplake. This shall be available 24 x 7, 365 days per year with an service level of 99.7%.
6.2 The support agreement provisions includes support for Gateway Services.
7 Hosted Services
7.1 Where Software is hosted by Deeplake n behalf of customers this shall be available 24 x 7, 365 days per year with an service level of 99.7%.
7.2 All use provisions by the customer remain as though the Software was hosted by the customer.
7.3 Deeplake is responsible for all hosted software licences and maintenance unless otherwise agreed in writing.
8 Warranty
8.1 Deeplake warrants to the Licensee that it will perform the Services provided for in this Agreement with reasonable skill and care.
8.2 The Licensee shall give notice to Deeplake as soon as it is reasonably able and in any event within 7 days on becoming aware of a breach of warranty.
8.3 Subject to clause 6.4 below Deeplake shall remedy any breach of the warranty set out in clause 6.1 above by the provision of Services free of charge.
8.4 Deeplake shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clauses 5.3 and 5.4 above.
9 Termination
9.1 This Agreement will run co-terminus with the end-user license and may be terminated by Deeplake or the Licensee giving at least 90 days written notice to the other party such notice to take effect no sooner than the following anniversary of this Agreement.
9.2 Deeplake may terminate this Agreement if the Licensee fails to comply with the Terms or any related agreement between Deeplake and the Licensee.
9.3 The Licensee may terminate this Agreement if Deeplake fails to comply with the Terms or any related agreement between Deeplake and the Licensee provided that Deeplake has been given 30 days prior written notice during which Deeplake has failed to correct the breach where such breach is capable of remedy.
9.4 This Agreement shall be terminated with respect to any particular item of Software on the date any such Software Licence expires or the Licence is terminated for any reason.
10 Software License
11 The Licensee has been granted a licence by Deeplake in the terms of a separate Software Licence to use Software being supported under this Agreement and acknowledges that any replacements, improvements or additions to that Software provided under this Agreement will be subject to the terms and conditions of the Licence.
GENERAL PROVISIONS
The Agreement will constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, communications and representations (except for fraudulent or negligent misrepresentations) whether oral or written, between the parties.
Unless otherwise stated quotations are valid for a period of ninety (90) days. Pricing for Software and Services may change at Deeplake's discretion and Consulting charges may vary at time of delivery. Where orders are placed at current charges these will be honoured for six (6) months from date of order but we reserve the right to requote for undelivered sotware and services after this. Charges will be due:
- For Training services and Software Licences at time of order;
- For Support Services on delivery of Software Licences;
- For Consulting services following delivery (unless pre-purchased).
A person who is not party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
In the event of a dispute between the parties, the parties will attempt in good faith to resolve the dispute or claim arising out of or relating to the Agreement promptly through negotiations between the respective representatives of the parties who have authority to settle the same.
If any provision of the Agreement (whether in part or in whole) is held by a court of competent jurisdiction to be illegal, invalid or unenforceable the remaining provisions of the Agreement shall remain in full force and effect.
Any waiver of any breach of any provision of the Agreement will not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions of the Agreement.
The Customer may not assign or otherwise transfer, by operation of law or otherwise, the Agreement or any rights or obligations therein without the prior express written consent of Provider.
The headings to the sections of this Agreement are for convenience only.
The Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England.
