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Software - License Agreement

Where the context admits: "We" & "Us" includes Webnetics UK Limited (Trading as Virtual Web Designs) of: Glenmaric, Marsh Road, Halvergate, Norwich, Norfolk NR13 3QB, United Kingdom or any party acting on Virtual Web Designs implicit instructions. "You" includes the person purchasing the Services or any party acting on the customer's instructions. The relationship entered into between you and us is governed by these following terms, which shall apply during, and where necessary after, the period of the commercial relationship between you and us.


1. Assignment and Subcontracting


The Client may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of Virtual Web Designs. Any consent provided by Virtual Web Designs under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were the Client. Virtual Web Designs may sub-contract or assign any or all of its rights and obligations under the Agreement.


2. Provision of Software


2.1. In consideration of payment by the Client of the Fees, Virtual Web Designs will supply to the Client one copy of the Software and Third Party Software in object code form. If the Client is using are software the bound to this agreement, under the terms of this license agreement.


2.2. Virtual Web Designs grants to the Client the non-exclusive, non-transferable right to Use the Software for so long as the relevant Services continue to be provided subject to the remaining terms of these Conditions.


3. Client's Undertakings


The Client undertakes:


3.1. to maintain accurate and up-to-date records of the number and locations of all copies of the Software;


3.2. to take good care of the Software; and

3.3. not to provide or otherwise make available the Software in whole or in part (including program listings, object and source program listings, object code and source code) in any form to any person other than the Client's employees without the prior written consent of Virtual Web Designs.


4. Copying


The Client may make only so many copies of the Software as are reasonably necessary for operational security and to Use the Software. Such copies and the media on which they are stored will remain the property of Virtual Web Designs, and the Client will ensure that all such copies bear Virtual Web Designs's proprietary notices.


5. Alterations


5.1. Except to the extent and in the circumstances expressly required to be permitted by Virtual Web Designs by law, the Client may not:


5.1.1. alter, modify, adapt or translate the whole or any part of the program listings, object and source program listings, object code or source code in the Software in any way whatsoever;


5.1.2. permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs; or


5.1.3. decompile, disassemble or reverse engineer the Software; nor attempt to do any of these things.


5.2. To the extent that the law applicable to the Agreement grants the Client the right to decompile the Software in order to obtain information necessary to render the Software interoperable with other computer programs used by the Client, Virtual Web Designs undertakes to make that information readily available to the Client. Virtual Web Designs may impose reasonable conditions (including a reasonable fee) for doing so. In order to ensure that the Client receives the appropriate information, the Client must first give to Virtual Web Designs sufficient details of the Client's objectives and the other computer programs concerned


6. Software Performance


6.1. The Client acknowledges that:


6.1.1. software in general is not error-free, and agrees that the existence of such errors will not constitute a breach of the Agreement; and


6.1.2. the Software will operate only in conjunction with the Client System and other operating systems that may be notified by Virtual Web Designs in writing from time to time.


6.2. Virtual Web Designs will use its reasonable endeavours to check the Software for the most commonly known viruses prior to delivery to the Client. However, the Client is solely responsible for virus scanning the Software and Virtual Web Designs gives no warranty that the Software will be free from viruses.


6.3. Virtual Web Designs warrants that (subject to the other provisions of the Agreement) the Software will as at delivery be free from material errors which prevent the Client's use of the Services and conform in all material respects with any applicable specification agreed in writing between the Client and Virtual Web Designs. Virtual Web Designs will not be liable for a breach of this warranty:


6.3.1. if the error in question has been caused by any modification variation or addition to any part of the Software not performed by Virtual Web Designs, their incorrect use by the Client, or use with or in connection with systems with which they are incompatible; or


6.3.2. where the Client does not notify Virtual Web Designs in writing of a failure within 14 days of becoming aware of the same.


6.4. If the Client makes a valid claim against Virtual Web Designs based on the failure by Virtual Web Designs to comply with the warranty set out in clause 6.3 Virtual Web Designs will at its option take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to the defective Software.


6.5. If Virtual Web Designs complies with clause 6.4 it will have no further liability for a breach of the warranty set out in clause 6.3.


7. Third Party Software and Services


Any Third Party Software and or Service is supplied to the Client on the basis of the relevant third party's standard licence terms provided to the Client with the relevant Third Party Software and or Service and with which the Client agrees to comply with.


8. Provision of Support Services


8.1. Virtual Web Designs will provide the Support Services to the Client upon the terms and conditions set out in this Part 3 and Part 1 of these Conditions.


8.2. Virtual Web Designs will only be obliged to provide the Support Services during Support Hours as detailed on the Virtual Web Designs website


8.3. The obligation of Virtual Web Designs to provide Support Services will not extend to:


8.3.1. rectification of lost or corrupted data except where such loss is as of a direct result of a Virtual Web Designs server crash;


8.3.2. Software altered modified or varied by other than Virtual Web Designs;


8.3.3. attendance to faults arising from the Client's failure to comply with Virtual Web Designs's instructions with regard to the use of the Services or any documentation or manuals provided by Virtual Web Designs, or operator error or omission; or


8.3.4. attendance to faults attributable to the use or interaction of an Ancillary System with other software or systems with which it is not compatible.


8.3.5. Virtual Web Designs will charge its standard employee charge out rates in addition to the Fees for the carrying out any remedial work described in clauses 8.3.1 to 8.3.3.


8.4. Virtual Web Designs will use its reasonable endeavours to provide the Support Services in accordance with any applicable SLA


8.5. Scope of Support Services Virtual Web Designs will at no additional charge to the Client initially install the standard operating system Software on to the Client System or, where appropriate, the Equipment. Any re-install will occur a charge, charge will be detailed in any applicable SLA. For avoidance of all doubt if the Client opts out of the use of the control panel and takes route access then Virtual Web Designs shall only support the Hardware. Virtual Web Designs is only obliged to conduct a reinstall if a defect occurs to a Client's service.


8.6. Virtual Web Designs will operate a helpline service to assist the Client in relation to the Client's use of the Services and the identification and correction of Defects. Assistance via this helpline service may be requested by the Client and provided by Virtual Web Designs, by telephone, e-mail or helpdesk ticket system provided by Virtual Web Designs. The service will be obtained by telephoning, e-mailing such numbers or addresses or logging into such ticketing systems, as are notified by Virtual Web Designs from time to time.


8.7. If a Defect occurs, the following procedure will be followed:


8.7.1. the Client will notify Virtual Web Designs of the Defect and provide such information and assistance as Virtual Web Designs reasonably requires in connection with such Defect; and


8.7.2. Virtual Web Designs will analyse the Defect and use its reasonable endeavours to rectify the Defect in question or propose a solution in connection with the same, within ten Business Days of being notified of the same under clause 8.6.


9. Intellectual Property


9.1.The Client acknowledges and agrees that it will not own or acquire any rights under this Agreement in any Intellectual Property in or relating to the Services or created in performing the Services and that it will have no other rights in or to the Services other than the rights expressly granted by the Agreement.


9.1.1. the provision by Virtual Web Designs of Services making use of information or specifications supplied by the Client;


9.1.2. the Client's failure to procure all necessary rights from third parties which are from time to time required in order for Virtual Web Designs to be able legally to provide the Services; or


9.1.3. the use by Virtual Web Designs in connection with the Agreement of the Client System and the Client Materials.


9.1.4. No Intellectual Property Rights created or acquired by Virtual Web Designs will transfer or be assigned to the Client unless Virtual Web Designs and the Client have signed a written assignment document to that effect.


9.1.5. The Client shall keep the Software in good condition during the continuance of the Agreement and free of all charges, liens and encumbrances and protect it from any and all judicial process.


10. Liability


10.1. The provisions of this clause 9 and the provisions of clauses 4 and 24 set out the entire liability of Virtual Web Designs (including any liability for the acts or omissions of its consultants, employees, agents and authorized representatives) to the Client in respect of:


10.1.1. any breach of the Agreement; and


10.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.


10.2. Nothing in the Agreement excludes or limits the liability of Virtual Web Designs for death or personal injury caused by the negligence of Virtual Web Designs, fraud or a breach of section 12 of the Sale of Goods Act 1979.


10.3. Subject to clauses 10.2 the total liability of Virtual Web Designs in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Agreement is limited to:


10.4. for any other kind of loss, one and a quarter times the amount of sums paid by the Client to Virtual Web Designs pursuant to the Agreement (excluding VAT and expenses) during the preceding 12 month period.


10.5. Virtual Web Designs will not be liable to the client in contract, tort, misrepresentation or otherwise (including negligence), for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, or for any loss of profit, loss of business, loss of revenue, loss of contract, loss of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of virtual web designs or its employees, agents or authorised representatives, which arises out of or in connection with the agreement.


10.6. The Client acknowledges that the allocation of risk in the Agreement reflects the price paid for the Services and that it is not within the control of Virtual Web Designs how or for what purposes they are used.


10.7. Where the Client accesses Virtual Web Designs services from locations outside the UK, the Client does so, on the Client's own initiative and is responsible for compliance with local laws.


11. Client Indemnity


The Client will fully indemnify and keep Virtual Web Designs its parent company, sister companies, subsidiaries and affiliates, officers, partners, directors employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:


11.1. the Client's breach of the Agreement, negligence or other default;


11.2. the operation or break down of any IT systems owned or used by the Client including the Client System but not the Equipment; or


11.3. the Client's use or misuse of the Services.


11. Non-Waiver


11.1 Any forbearance or failure by us to enforce a contractual provision to which you are subject shall not affect our right to require such performance at any subsequent time, nor shall the waiver or forbearance by us of any breach of any provisions of the agreement herein be taken to be or held to be a waiver of the provision or provisions itself of themselves.


12. Notices


12.1 Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error-free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.


12.2 We reserve the right to cancel any contract with you, without notice or give any reason for cancelling this contact. In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever, even if we has been advised of the possibility of such damages.


12.3 We reserve the right to change these terms and conditions without notice to you or any 3 rd party.


13. Law


13.1 This Agreement shall be governed by and construed in accordance with English law and you hereby submit to the non-exclusive jurisdiction of the English courts.


14. Headings


14.1 Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.


15. Entire Agreement


15.1 These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you confirm that you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.