These are the terms on which you (“the Licensee”) can obtain the software product known as EscapeE (“the Software”) from RedTitan Limited of Aston Court, Kingsmead Business Park, Frederick Place, High Wycombe, Bucks, HP11 1JU, United Kingdom (“RedTitan”)
If you (“the Licensee”) wish to order the Software on the terms set out below, please click “Accept licence” to acknowledge acceptance of these terms. These terms will then govern any order which you place for the Software.
WHEREBY IT IS AGREED as follows :-
1.1 In this Agreement, the following expressions shall have the following meanings:-“Intellectual Property Rights” all copyrights, patents, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world. “Licence Fee” the licence fee specified in the order form. “Software” the Software identified in the order form. “User Parameters” the specification of the hardware on which the Software may be used, the location at which the Licensee may use the Software, and any other parameters of use specified in the order form.
2.1 In consideration of the payment of the Licence Fee, RedTitan hereby grants to the Licensee a non-exclusive, non-transferable Licence in object code to use the Software only for its internal business purposes (which for the avoidance of doubt shall not include facilities management or bureau services) and strictly in accordance with the User Parameters and subject to any special conditions specified in the order form.
2.2 Any use of the Software otherwise than in accordance with Clause 2.1 shall be subject to RedTitan’s prior written consent and any reasonable additional licence fee which RedTitan determines.
2.3 The Licensee shall not, except to the extent permitted by law, modify, reverse assemble, decompile or reverse engineer the Software nor shall it permit whether directly or indirectly any third party to do any of the foregoing.
2.4 The Licensee shall pay any invoice correctly raised by RedTitan within 30 days of the date of such invoice.
2.5 If the Licensee fails to pay any sum due under this Agreement when it is expressed to be due, RedTitan shall be entitled to charge interest on a daily basis on all overdue amounts and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate 4% above the base rate for the time being in force of Barclays Bank plc.
2.6 For the purposes of this Agreement, time of payment by the Licensee shall be of the essence.
- Confidentiality, Copying and Intellectual Property Rights
3.1 The Licensee acknowledges that the ideas and expressions contained in the Software (and any modifications thereof or updates thereto provided to the Licensee by RedTitan) and any particulars thereof provided to the Licensee by RedTitan are confidential and the Licensee undertakes not to divulge such information to a third party and only to divulge such information to its associated companies, agents and employees as is strictly necessary to enable it to be used in accordance with and for the purposes hereof and the Licensee undertakes to ensure that such entities maintain such confidentiality and the Licensee acknowledges that the terms of this Clause and Clause 4 shall survive the termination for whatever reason of this Agreement.
3.2 RedTitan shall be entitled to disclose the name of the Licensee as a user of the Software.
3.3 Except for back-up purposes or otherwise in accordance with the law, the Licensee shall not itself nor allow any third party to duplicate or otherwise reproduce in whole or in part the Software.
3.4 The Licensee acknowledges that it obtains no Intellectual Property Rights whatsoever in any software or documentation by virtue of this Agreement.
3.5 The Licensee will notify RedTitan of any claim which may be made against RedTitan, or any related company or the Licensee alleging that the Software infringes the Intellectual Property Rights of a third party as soon as it becomes aware of any such actual or potential claim.
3.6 The Licensee shall immediately bring to the attention of RedTitan any infringement or suspected infringement by any third party of any of the Intellectual Property Rights in the Software of which it is aware and shall at the request and expense of RedTitan take such action or assist RedTitan in taking such action as RedTitan may deem appropriate to protect its Intellectual Property Rights.
3.7 The Licensee undertakes not to remove, delete or obscure any copyright notices or confidentiality notices on or in the Software and to ensure the accurate reproduction of the same on any copies of the Software which it is entitled to make in accordance with the terms hereof.
- Limitation of Liability and Warranties
4.1 The Software has not been written to meet the individual requirements of the Licensee and it is the sole responsibility of the Licensee to satisfy itself prior to entering this Agreement that the Software will meet its requirements and be compatible with its hardware/software configuration. RedTitan makes no warranty or representation in that respect and no failure of any part or the whole of the Software to be suitable Licensee or for any liability of the Licensee to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract.
4.2 RedTitan is not liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Licensee or for any liability of the Licensee to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract.
4.3 RedTitan shall not be liable for any loss or damage of whatsoever nature suffered by the Licensee arising out of or in connection with any breach of this Agreement by the Licensee or any act, misrepresentation, error or omission made by or on behalf of the Licensee (including without prejudice use of the Software by someone with inadequate training or experience) or arising from any cause beyond RedTitan’s reasonable control.
4.4 Subject to Clauses 4.6 and 4.7 below, no matter how many claims are made and whatever the basis of such claims, RedTitan’s maximum aggregate liability to the Licensee under or in connection with this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clauses 4.1-4.3 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to [insurance cover/twice] the Licence Fee paid by the Licensee.
4.5 Whilst RedTitan makes all reasonable attempts to exclude viruses from the Software, it cannot ensure such exclusion and no liability is accepted for viruses. Thus, the Licensee is recommended to insure itself against this risk.
4.6 None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of RedTitan or its appointed agents.
4.7 RedTitan gives no warranties in connection with the Software other than that the Software will perform substantially in accordance with the accompanying written materials for a period of 30 days from the date of despatch to the Licensee. All other warranties, express or implied, statutory or otherwise are excluded.
4.8 The Licensee hereby warrants that it has not been induced to enter into this Agreement by any prior representations whether oral or written except as expressly contained in this Agreement and the Licensee hereby waives any claim for breach of any such representations which are not so contained.
5.1 Either party may terminate this Agreement immediately by written notice to the other in the event that any of the following occur:-
5.1.1 the other fails to pay any amount due hereunder within 30 days of its due date or breaches any term of this Agreement and such breach is incapable of remedy or continues for a period of 30 days after notice requiring the same to be remedied has been given by the terminating party to the other party; or
5.1.2 an order is made or a resolution is passed for the winding up of the other party, or if a provisional liquidator is appointed in respect of the
other party, or if an administration order is made in respect of the other, or if a receiver is appointed in respect of the other or all or any of its assets or if the other is unable to pay any of its debts within the meaning of Section 123 of the Insolvency Act 1986, or if any voluntary arrangement is proposed under Part 1 of the Insolvency Act 1986 in respect of the other.
5.2 RedTitan may terminate this Agreement forthwith if the Licensee purports to breach Clause 6.4 hereunder.
5.3 Termination of this Agreement shall be without prejudice to any other rights or remedies of the terminating party.
5.4 In the event of termination of this Agreement, the Licensee shall within 14 days destroy the Software and any documentation supplied by RedTitan together with any copies thereof and write to RedTitan certifying that this has been done.
6.1 Subject to Clause 6.2, this written Agreement together with the order form, constitutes the entire agreement between the parties hereto relating to the subject matter hereof and neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 6.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable.
6.2 No change, alteration or modification to this Agreement shall be valid unless in writing and signed by duly authorised representatives of both parties.
6.3 If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
6.4 The rights and obligations of the Licensee under this Agreement are personal to the Licensee and the Licensee undertakes that it shall not, without the prior written consent of RedTitan, assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
6.5 RedTitan reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
6.6 Any notice given pursuant hereto may be served personally or sent by pre-paid registered letter or recorded delivery to the addresses given hereabove. Such notice shall be deemed to have been duly served upon and received by the addressee, when served personally, at the time of such service or, when posted, 48 hours after the same shall have been put into the post correctly addressed and pre-paid.
6.7 Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
6.8 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
6.9 Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Agreement.
6.10 This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales