License Agreement

PresentiaFX – Software Licence Hosting 

Maintenance and Support Agreement

24 Month Agreement 

Software Licence, Hosting, Maintenance and Support Agreement[1]

DATE:

PARTIES:

(1)     Plus Two Limited, a company incorporated in England and Wales (registration number 4027901) having its registered office at Thames House, Bourne End Business Park, Cores End Road, Buckinghamshire, SL8 5AS (the “Licensor”); and

(2)     [Company Name] Limited, a company incorporated in England and Wales Registration Number [Company Registration Number] having its registered office at [Company Address] (the “Licensee”).

BACKGROUND:

(A)     The Licensor has developed and owns or has licensed from third parties certain computer software applications that will manage presentations known as PresentiaFX.

(B)     The Parties have agreed that the Licensor will license PresentiaFX to the licensee, host the server aspect of PresentiaFX and maintain the software, on the terms of this agreement.

  1. Definitions and interpretation

1.1     In this Agreement:

Agreement” means this software licence hosting and maintenance agreement (including the Schedules) and any amendments to it from time to time;

Business Day” means any week day, other than a bank public or Licensor holiday in England;

Business Hours” means between 09:00 and 17:30 London time on a Business Day;

Charges” means the amounts payable by the Licensee to the Licensor under or in relation to this Agreement as set out in Schedule 3;

Effective Date” means the date of execution of this Agreement;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Group” means in respect of a company, any holding company of it or any subsidiary undertaking of it or of such holding company, each as defined in the Companies Act 2006;

“Hosting” means the cloud solution currently provided to the Licensor by Rackspace Limited which hosts the server element of the PresentiaFX Software;

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Maintenance Services” means the support and maintenance services provided or to be provided by the Licensor to the Licensee in accordance with Schedule 2;

Minimum Maintenance Period” means the period of 24 Months beginning on the date of delivery of the Software to the Licensee;

Modifications” means additions, edits, alterations and modifications made to the Software by the Licensor or the Licensor’s authorised sub-contractor under Schedule 2 including Upgrades applied to the Software;

Personal Data” has the meaning given to it in the Data Protection Act 1998;

Schedule” means a schedule attached to this Agreement;

Software” means the computer software identified in Schedule 1 in executable format only, including where the context permits any Upgrades and other Modifications applied to the Software;

Term” means the term of this Agreement; and

Upgrades” means new versions of, and updates to, the Software released by the Licensor to its customers generally, whether for the purpose of fixing an error, bug or other issue in the Software or enhancing the functionality of the Software.

1.2     In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)     that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)     any subordinate legislation made under that statute or statutory provision.

1.3     The Clause headings do not affect the interpretation of this Agreement.

1.4     The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.

  1. Term

This Agreement will come into force on the Effective Date and will continue in force for 2 years upon which it will terminate automatically, unless terminated earlier in accordance with Clause 13.

  1. Delivery of Software

3.1     The Licensor will deliver a copy of the Software to the Licensee within 10 Business Days following the Effective Date.

3.2     For the avoidance of doubt, nothing in this Agreement requires the Licensor to deliver to the Licensee any copies of the source code of the Software, and nothing in this Agreement constitutes a licence to use the source code of the Software.

  1. Maintenance Services

4.1     From the date of delivery of the Software under Clause 3, the Licensor will provide the Maintenance Services to the Licensee.

4.2     The Licensor may sub-contract the provision of any of the Maintenance Services without obtaining the consent of the Licensee.

4.3     The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the Licensee to the Licensor under this Agreement is overdue by more than 45 days.

  1. Licensee obligations

The Licensee will provide a nominated contact and backup within their organisation who is principal point of contact with the Licensors Help desk. The Licensee acknowledges that they are responsible for ensuring that all administrators and users of the Software have received a proper level of training; that there is an effective support infrastructure in-house to receive and resolve user queries which includes technically knowledgeable people to support the Software in its environment and be able to identify and resolve environmental issues. In the event that the internal support infrastructure is unable to resolve the problem then the nominated contact and only the nominated contact or their backup will report the issue to the Licensor’s Helpdesk.

The Licensee will provide the Licensor with:

(a)     such access to the Software and the Licensee’s computer systems and such other co-operation as is required by the Licensor (acting reasonably) to enable the performance by the Licensor of its obligations under this Agreement; and

(b)     all information and documents required by the Licensor (acting reasonably) in connection with the provision of the Maintenance Services.

  1. Invoicing and payment

6.1     The Licensor will issue invoices for the Charges to the Licensee on or after the invoicing dates set out in Schedule 3.

6.2     The Licensee will pay the Charges to the Licensor within 30 days of the date of issue of an invoice issued in accordance with Clause 6.1.

6.3     All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise.

6.4     Charges must be paid by bank transfer or by cheque (using such payment details as are notified by the Licensor to the Licensee from time to time).

6.5     If the Licensee does not pay any amount properly due to the Licensor under or in connection with this Agreement, the Licensor may:

(a)     charge the Licensee interest on the overdue amount at the rate of 4% per year above the base rate of Barclays Bank Plc from time to time which interest will accrue daily; or

(b)     claim interest and statutory compensation from the Licensee pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

  1. Licence

7.1     Subject to the limitations set out in Clause 7.2 and the prohibitions set out in Clause 7.3, the Licensor hereby grants to the Licensee from the date of delivery  of the Software to the Licensee a non-exclusive licence to:

(a)     install the Software;

(b)     use the Software in accordance with its documentation; and

(c)     back-up the Software,

and the Licensee must not sub-license these

7.2     Save to the extent that the Licensor has given its express written consent, the licence granted by the Licensor to the Licensee under Clause 7.1 is subject to the following limitations:

(a)     the Software may only be installed for the number of Users specified in Schedule 4;

(b)     the Software may only be used by the employees, agents and sub-contractors of the Licensee and the Licensee’s officers;

7.3     Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licences granted by the Licensor to the Licensee under this Clause 7 are subject to the following prohibitions:

(a)     the Licensee must not sub-license the Software;

(b)     the Licensee must not sell, resell, rent, lease, supply, publish or distribute the Software;

(c)     the Licensee must not alter or adapt or edit the Software;

(d)     the Licensee must not de-compile or reverse engineer the Software or use the source code of the Software or use the Software in any human-readable format; and

7.4     The Licensor or the Licensor’s appointed representative may audit the computer systems and manual records of the Licensee at the premises of the Licensee for the purpose of ascertaining whether the Licensee is complying with the terms of the licences set out in this Agreement.  Such an audit shall be limited to those computer systems and manual records that are reasonably likely to provide evidence of compliance or non-compliance.  The Licensee shall provide to the Licensor all reasonable co-operation in relation to the audit.  The Licensor must give to the Licensee at least 5 Business Days’ written notice of such an audit visit; and not more than 1 such audit visit may be conducted during any calendar year.  This Clause 7.4 shall survive the termination of this Agreement and shall continue for a period of 12 months following the date of effective termination.

7.5     Notwithstanding any other provision of the Agreement, licences granted by the Licensor under this Agreement are subject to the payment by the Licensee of all amounts owing to the Licensor under this Agreement in full and on time.  In the event that the Licensee owes any amount to the Licensor under this Agreement and fails to pay that amount to the Licensor within 14 days of receiving a notice:

(a)     requiring it to do so; and

(b)     specifying that the licences will terminate if the amount remains unpaid,

then the Licensor may immediately terminate the licences granted by the Licensor under this Agreement by giving written notice of termination to the Licensee.

7.6     The Licensee grants to the Licensor during the Term a non-exclusive licence to copy, adapt and otherwise use:

(a)     any works or materials provided by or on behalf of the Licensee to the Licensor for the purpose of assisting with or enabling the maintenance of the Software; and

(b)     any works or materials the rights in which have been exclusively licensed by the Licensor to the Licensee under this Agreement,

  1. Security and Control

The Licensee shall during the continuance of the Licence:

  1. effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person;
  2. retain the Software 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 shall produce such record to the Licensor on request from time to time.
  1. Proprietary Rights
    1. The Software and the Intellectual Property Rights of whatever nature in the Software are and shall remain the property of the Licensor.
    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 by any person.
  2. Intellectual Property Rights
    1. The Licensor shall defend at its own expense any claim brought against the Licensee alleging that the use of the Software infringes the Intellectual Property Rights of a third party (‘Intellectual Property Claim’) and the Licensor shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Licensee:

furnishes the Licensor with prompt written notice of the Intellectual Property Claim;

provides the Licensor with reasonable assistance in respect of the Intellectual Property Claim;

gives to the Licensor the sole authority to defend or settle the Intellectual Property Claim.

  1. If, in the Licensor’s reasonable opinion, the use of the Software is or may become the subject of an Intellectual Property Claim then the Licensor shall either:

obtain for the Licensee the right to continue using the Software which is  the subject of the Intellectual Property Claim; or

replace or, with the written consent of the Licensee, modify the Software which is the subject of the Intellectual Property Claim so they become non-infringing.

  1. If the remedies set out above are not in the Licensor’s opinion reasonably available, then the Licensee shall return the Software which is the subject of the Intellectual Property Claim and the Licensor shall refund to the Licensee the corresponding portion of the Licence Fee, as normally depreciated, whereupon this Agreement shall immediately terminate.
  2. The Licensor shall have no liability for any Intellectual Property Claim resulting from the Use of the Software in combination with any equipment or programs not supplied or approved by the Licensor or any modification of any item of the Software by a party other than the Licensor or its authorised agent.
  1. Warranties

11.1    The Licensee warrants and represents to the Licensor:

(a)     that it has the legal right and authority to enter into and perform its obligations under this Agreement; and

(b)     that any works or materials provided by or on behalf of the Licensee to the Licensor for the purpose of assisting with or enabling the maintenance of the Software, and their use by the Licensor in accordance with the terms of this Agreement will not:

(i)      infringe any person’s Intellectual Property Rights or other legal rights;

(ii)     breach any laws, statutes or regulations; or

(iii)    give rise to a cause of action against the Licensor or the Licensee or any other person,

in each case in any jurisdiction and under any applicable law.

11.2    The Licensor warrants and represents to the Licensee:

(a)     that it has the legal right and authority to enter into and perform its obligations under this Agreement;

(b)     that it will perform its obligations under this Agreement with reasonable care and skill;

(c)     that the Software will at the date of delivery of the Software perform in accordance with the available documentation;

(d)     the Software will be supplied free from viruses and other malicious software programs.

11.3    The Licensee acknowledges that:

(a)     complex software is never wholly free from defects, errors and bugs, and the Licensor gives no warranty or representation that the Software will be wholly free from such defects, errors and bugs;

(b)     the Licensor does not warrant or represent that the Software will be compatible with any application, program or software not specifically identified as compatible in the documentation; and

(c)     the Licensor will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Software and (except to the extent expressly provided otherwise) the Licensor does not warrant or represent that the Software will not give rise to any civil or criminal legal liability on the part of the Licensee or any other person.

(d)     PresentiaFX like most Software is dependant upon third party software over which the Licensor has no control. In the event that there is a change in the third party software which impacts upon PresentiaFX the licensor will take reasonable steps to establish a work around.  If this is not practical the then Licensor may change and or withdraw software functionality giving the Licensee as much notice as possible.

11.4    All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement.  To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.

  1. Limitations and exclusions of liability

12.1    Nothing in the Agreement will:

(a)     limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b)     limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c)     limit any liability of a party in any way that is not permitted under applicable law; or

(d)     exclude any liability of a party that may not be excluded under applicable law.

12.2    The limitations and exclusions of liability set out in this Clause 12 and elsewhere in the Agreement:

(a)     are subject to Clause 12.1;

(b)     govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and

(c)     will limit and exclude the liability of the parties under the express indemnities set out the Agreement.

12.3    The Licensor will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

12.4    The Licensor will not be liable for any loss of business, contracts or commercial opportunities.

12.5    The Licensor will not be liable for any loss of or damage to goodwill or reputation.

12.6    The Licensor will not be liable in respect of any loss or corruption of any data, database or software.

12.7    The Licensor will not be liable in respect of any special, indirect or consequential loss or damage.

12.8    The Licensor will not be liable for any losses arising out of a Force Majeure Event.

12.9    The Licensor’s liability in relation to any event or series of related events will not exceed the lesser of:

(a)     £10,000; and

(b)     the total amount paid by the Licensee to the Licensor under the Agreement.

  1. Termination

13.1    Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:

(a)     commits any material breach of any term of this Agreement and:

(i)      the breach is not remediable; or

(ii)     the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

(b)     persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach).

13.2    Either party may terminate this Agreement immediately by giving written notice to the other party if:

(a)     the other party:

(i)      is dissolved;

(ii)     ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)    is or becomes insolvent or is declared insolvent; or

(v)     convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)     an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)     an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or

(d)     (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

  1. Effects of termination

14.1    Upon termination of this Agreement, all the provisions of this Agreement (including for the avoidance of doubt the licences set out in Clause 7 will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 6.5, 12,14,17.

14.2    Termination of this Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.

14.3    Upon termination of this Agreement by the Licensee under Clause 13.1 or Clause 13.2 the Licensee will be entitled to a refund of any Charges paid by the Licensee to the Licensor in respect of any Maintenance Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Licensor (such amount to be calculated by / the Licensor using any reasonable methodology).

14.4    Within 10 Business Days following the date of termination of this Agreement, the Licensee will:

(a)     return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and

(b)     irrevocably delete from its computer systems all copies of the Software.

  1. Notices

15.1    Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by first class post, for the attention of the relevant person, and to the relevant address.

15.2    A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a)     where the notice is delivered personally, at the time of delivery;

(b)     where the notice is sent by first class post, 48 hours after posting.

  1. Data protection

16.1    The Licensee warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Licensor under or in connection with this Agreement.

16.2    The Licensor warrants that:

(a)     it will act only on instructions from the Licensee in relation to the processing of any Personal Data performed by the Licensor on behalf of the Licensee; and

(b)     it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Licensor on behalf of the Licensee.

  1. General

17.1    No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

17.2    If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect.  If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

17.3    Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

17.4    This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.5    The Licensee hereby agrees that the Licensor may freely assign any or all of its contractual rights and/or obligations under this Agreement to any successor to all or a substantial part of the business of the assigning party from time to time.  Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.

17.6    This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party.  The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

17.7    Subject to Clause 12.1:

(a)     this Agreement constitutes the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and

(b)     neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

17.8    This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

The parties have indicated their acceptance of this Agreement by executing it below.

EXECUTION:

SIGNED by [Plus Two Company Signatory]

duly authorised for and on behalf

of the Licensor

………………..

Date:

SIGNED by [Company Signatory]

duly authorised for and on behalf

of the Licensee

………………..

Date:

Schedule 1

Specification of Software

PresentiaFX Version XXXX

Schedule 2

Maintenance Service Levels

  1. Introduction

References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

  1. Helpdesk

2.1     The Licensor will make available, during Business Hours, a telephone and email helpdesk facility for the purposes of:

(a)     Assisting the Licensee with the proper use of the Software where the in-house support function has been unable to resolve the issue;

(b)     Determining the causes of errors in the Software; and/or

(c)     Fixing errors in the Software.

2.2     The Licensee must make all requests for Maintenance Services through the helpdesk via its nominated contact or backup.

  1. Response and resolution times

3.1     The Licensor will:

(a)     use reasonable endeavours to respond to requests for Maintenance Services made through the helpdesk; and

(b)     use reasonable endeavours to resolve issues raised by the Licensee,

promptly / in accordance with the following response time matrix.

Severity Examples Response time Resolution / Work around time
Critical System  entirely inoperable 2 Hours 2 Days
Serious Unable to run Presentations 4 Hours 2 Days
Moderate Unable to push Presentation to the Web 8 Hours 10 days
Minor 8 Hours 30 Days or future release

 

3.2     The Licensor will determine, acting reasonably, into which severity category an issue raised through the Maintenance Services falls.

3.3     Subject to Paragraphs 5 and 6, Maintenance Services will only be provided under this Paragraph 3 for the following purposes:

(a)     assisting with the proper use of the Software;

(b)     determining the causes of errors in the Software; and/or

(c)     fixing errors in the Software.

3.4     All Maintenance Services will be provided remotely unless expressly agreed otherwise by the Licensor. Onsite support may be available by separate arrangement.

  1. Upgrades

4.1     The Licensor will:

(a)     give to the Licensee reasonable prior notification of the general release of an Upgrade to the Licensee;

(b)     provide copies of such Upgrades to the Licensee promptly following the general release of the relevant Upgrade to the customers of the Licensor; and

4.2     Where the Licensee does not apply such an Upgrade to the Software within a calendar year of its delivery, then the Licensor is at entitled to withdraw Maintenance for the software having notified the licensee in writing of its decision to do so.

  1. Additional development work

5.1     After the delivery to the Licensee of the Software, the Licensee may request that the Licensor perform development work as part of the Maintenance Services for the purpose of creating new functionality for the Software, in which case the Licensor will only be obliged to perform such development work if the parties agree in writing to the terms.

5.2     Where the Licensor agrees to perform the development work, the following matters shall be agreed in writing by the parties using the Change control procedure setting out the scope of the development work, the estimated Charges, and the timetable for the performance of the development work.

  1. Limits on Maintenance Services

6.1     Where the total person-hours spent by the Licensor performing the Maintenance Services (excluding additional development work under Paragraph 5) during any calendar year exceed 30 hours, then:

(a)     the Licensor will cease to have an obligation to provide Maintenance Services to the Licensee during that period; providing that

(b)     the Licensor may agree to provide additional Maintenance Services to the Licensee during that period, but the provision of such services will be subject to payment by the Licensee of additional Charges at the Licensor’s standard hourly rates from time to time.

6.2     The Licensor will have no obligation under this Agreement to provide Maintenance Services in respect of any fault or error caused by:

(a)     the improper use of the Software;

(b)     the use of the Software otherwise than in accordance with its documentation; or

(c)     any alteration to the Software (including repairs and upgrades) made without the Licensor’s prior written consent.

Schedule 3

Charges

  1. Introduction

1.1     References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

1.2     The Charges under the Agreement will consist of the following elements:

(a)     Licence Hosting and Maintenance Charges

(b)     Training Charges

(c)     Other charges

(d)     Expenses.

  1. Licence Hosting and Maintenance Charges

The combined Licence Hosting and Maintenance Charges for the Term will total £XXXX plus VAT which shall be invoiced by the Licensor on the Effective Date.

  1. Training
  1. Other Charges
  1. Expenses

5.1     All reasonable expenses may be passed on by the Licensor to the Licensee for example: travel expenses, accommodation expenses and subsistence expenses.

5.2     The expenses may be invoiced by the Licensor to the Licensee at any time after the relevant expense has been incurred.

  1. Variation of Charges

The Licensor may vary the Charges on and from any anniversary of the Effective Date, providing that no such variation will result in the relevant element of the Charges increasing during the Term by more than the percentage increase during the same period in the Retail Prices Index (all items) published by the UK Office for National Statistics.

Schedule 4

Licensing

Number of Users Licensed to use the Software: [Number of Users]

Geography in which the software may be used: [Location]

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