MANDOFORMS SOFTWARE LICENCE AGREEMENT
This is a legal Agreement made on the date set out in the Order
Form between:
(1) NETTGAIN SOLUTIONS LIMITED trading as Mandoforms (a company
registered in England number 3321320) whose registered office is
at 10th Floor, 21 New Fetter Lane, London, EC4A 1AJ, England
("Mandoforms"); and
(2) THE COMPANY, CORPORATION OR PARTNERSHIP who is in possession
of the Software and whose particulars appear in the Order Form
("Customer").
BACKGROUND
(A) Mandoforms is a developer and supplier of innovative software
products for business.
(B) Customer wishes to licence software products from Mandoforms
and Mandoforms wishes to supply the same on the terms and
conditions set out below.
OPERATIVE CLAUSES
1 Interpretation
1.1 In this Agreement the following expressions have the following
meanings:
"CPUs" Central Processing Units owned or controlled by Customer
on which the Software can be operated
"End-Users" Such third parties as require use of the Software in
connection with their relationship with Customer from time to
time, including for the avoidance of doubt employees and
contractors of Customer
"Hardware" Computer equipment of Customer the TCP/IP address of
which is to be notified to Mandoforms on request
"Instances" Separate copies of the software installed on the
Hardware
"Intellectual Property" Any and all patents, copyrights, trade
marks and other intellectual property rights and all similar
rights in the world
"Licence" The licence granted under clause 2.1 of this Agreement
"Licence Fee" The sum to be paid by Customer to Mandoforms for
use of the Software as detailed in the Proposal
"Order Form" The form used to specify the Software the Customer
wishes to be licensed to use on the terms of this Agreement
"Product Knowledge Base" The electronic operating instructions
incorporated into the Software
"Proposal" Any quotation, proposal or written communication which
includes, without limitation, details of the Licence Fee and the
payment terms relating thereto
"Registration" Customer's notification of its use and acceptance
of the Software (whether served in writing or electronically)
"Software" The computer programs supplied to Customer by
Mandoforms under this Agreement as detailed in the Order Form
"Third Party Software" Any Third Party Software supplied under
this Agreement which is either embodied within or used in
conjunction with the Software
1.2 In the event of a conflict between this Agreement and the
Order Form then this Agreement shall prevail.
2 Grant of Licence
2.1 In consideration of the Licence Fee, Mandoforms hereby grants
to Customer a non-assignable, non-transferable, non-exclusive
licence to use the Software on the Hardware solely for its own
internal business purposes in accordance with this Agreement.
Such licence will continue indefinitely until terminated in
accordance with this Agreement. For the avoidance of doubt
Customer may not loan, rent, lease, sub-licence, sell or otherwise
transfer the Software to any third party or use the same to
provide bureau or other services to the third parties.
2.2 The Licence entitles Customer to make such copies of the
Software as are necessary solely for archive and back-up purposes.
In making copies Customer will ensure that all copyright and
proprietary notices contained on the original version of the
Software also appear on all copies made. Customer will keep a
written record of the whereabouts of copies made and will allow
Mandoforms to verify the same from time to time.
2.3 Save as permitted by law and by this Agreement Customer shall
have no right to merge, decompile, dis-assemble, reverse engineer,
copy, adapt or modify the Software or ascertain or list the source
code of the Software.
2.4 The Licence shall only enable Customer to permit employees and
contractors to install and configure the Software and End-Users to
access and operate the Software. The right to use the Software
shall be strictly limited to the number of Instances and the
number of CPUs detailed in the Order Form. Should Customer
require additional Instances and/or CPUs to be added, Customer has
the right to extend the Licence in consideration for additional
sums.
2.5 The Intellectual Property in the Software shall (as between
Mandoforms and Customer) at all times remain with Mandoforms.
2.6 The Software shall be deemed to be accepted within seven (7)
days of delivery.
2.7 Mandoforms shall supply any Third Party Software to the
Customer on the terms detailed in the then applicable Third Party
Software licence notified to the Customer from time to time.
3 Additional Services
3.1 Other services may also be made available by Mandoforms to
Customer by separate agreement between the parties. These
include, without limitation, technical support, software
subscription and professional services. Such services shall be
subject to supplementary charges and will be provided on
Mandoforms then prevailing standard terms.
3.2 Mandoforms may offer for purchase by Customer new products
from time to time at Mandoforms' then prevailing standard list
price. Such products shall be provided on Mandoforms' then
prevailing standard terms.
4 Price and Payment
4.1 The Licence Fee and payment terms are detailed on or referred
to in the Proposal. Unless otherwise agreed the Customer shall
have no rights to use the Software under this Agreement without
making payment in full when the Order Form is sent.
4.2 Any charges to Customer under this Agreement shall be subject
to value added tax or any other valid sales tax at the rates
appropriate from time to time.
4.3 Where for any reason payment of the Licence Fee is not made by
the due date Mandoforms may, without prejudice to its other rights
or remedies under this Agreement:
4.3.1 terminate or suspend Customer's rights to use the Software
under the Licence; and/or
4.3.2 charge interest on all outstanding sums from the date
payable at the rate of 4% per annum above the base leading rate of
the Bank of Scotland in place at the then current time.
5 Warranty
5.1 Mandoforms warrants that the Software will for ninety (90)
days after delivery in all material respects possess the
functionality detailed in the Product Knowledge Base. Customer
will give notice to Mandoforms as soon as it is reasonably able
upon becoming aware of a breach of warranty. Mandoforms' sole
liability and obligations in relation to any breach of warranty
under this clause 5.1 shall be to use its reasonable endeavours to
remedy any material defect in the Software. If Mandoforms is
unable to repair or replace the Software it shall refund the
Licence Fee to Customer in full.
5.2 Customer acknowledges that Mandoforms does not warrant or
represent that the operation of the Software will be uninterrupted
or error free and agrees that the existence of an error shall not
constitute a breach of this Agreement.
5.3 The warranties in clause 5.1 are the only warranties given
under this Agreement. Any other warranties, conditions,
obligations or implied terms which are implied into this Agreement
by statute, custom or at law (including, without limit, any
conditions of fitness for purpose or relating to satisfactory
quality) are excluded to the fullest extent permitted by law.
6 Intellectual Property Rights Indemnity
6.1 Mandoforms warrants to Customer that Mandoforms is entitled to
grant the Licence and that neither use nor possession of the
Software will subject Customer to any valid Intellectual Property
infringement claim by a third party.
6.2 Mandoforms will indemnify Customer against any and all damages
or legal costs awarded against the Customer as a result of any
third party claim incurred as a result of a breach of clause 6.1
to the limits set out in clause 8 provided that as a condition
precedent:
6.2.1 Customer promptly notifies Mandoforms following receipt of
the claim providing Mandoforms with all information reasonably
available to Customer and any assistance in the claim as
Mandoforms reasonably requires from time to time; and
6.2.2 Customer makes no admission or in any other way prejudices
Mandoforms' defence of the claim and provides Mandoforms with sole
control of the defence of the claim and all related settlement
negotiations.
6.3 Mandoforms shall have no liability for any claim of
infringement based on or to the extent arising from:
6.3.1 use of an outdated or unaltered release of any Software if
such infringement would have been avoided by use of updated and
amended Software which had been offered to Customer (at no
specific additional cost to Customer); or
6.3.2 combination or use of the Software with hardware or
software not approved in writing by Mandoforms; or
6.3.3 use of any Software that has been modified or altered
other than by Mandoforms or with Mandoforms' prior written
permission.
7 Termination and Post Termination Provisions
7.1 This Agreement may be terminated by notice in writing with
immediate effect:
7.1.1 by either party if the other commits a material breach of
any term of this Agreement which (in the case of a breach capable
of being remedied) has not been remedied within thirty (30) days
of a written request to remedy the breach (and for these purposes
it is agreed that lateness is a remediable breach); and/or
7.1.2 by either party if the other proposes a voluntary
arrangement, suffers an insolvency event or any similar or
analogous event occurs in relation to the other party in this or
any other jurisdiction.
7.2 Upon termination of this Agreement for any reason the Licence
granted hereunder shall terminate and Customer shall immediately
cease use of the Software. Customer shall immediately on such
termination return to Mandoforms all copies of the Software,
delete all stored copies and shall also certify to Mandoforms that
no copies have been retained.
7.3 Any termination of this Agreement under this clause 7 is
without prejudice to any other rights or remedies a party may be
entitled to under this Agreement or at law. It does not affect
any accrued rights or liabilities of either party nor any
provision which is expressly or by implication intended to come
into force on, or continue in force after, termination.
8 Liability
8.1 Subject to clause 8.3 Mandoforms' total liability under or in
connection with this Agreement whether in contract, tort or
otherwise will not in aggregate exceed the Licence Fee. Customer
acknowledges that given all the circumstances this limit is
reasonable.
8.2 Mandoforms shall not be liable for any loss of profit,
revenues, goodwill or data, third party losses, injury to
reputation or any consequential, indirect or special losses or
damage, regardless of the form of action.
8.3 Notwithstanding anything to the contrary in this Agreement
Mandoforms' liability to Customer:
8.3.1 for death or personal injury caused by the negligence of
Mandoforms, its employees, agents or sub-contractors;
8.3.2 under Part 1 of the Consumer Protection Act 1987;
8.3.3 due to any breach by Mandoforms of conditions as to title
or warranty as to quiet possession; or
8.3.4 for fraud (including without limit, fraudulent
misrepresentation)
shall not be limited (but nothing in this clause confers any right
or remedy upon Customer to which it would not otherwise be
entitled).
8.4 This clause 8 has continuing effect after termination of this
Agreement.
9 Confidentiality
9.1 Mandoforms and Customer now undertake to each other:
9.1.1 to keep confidential all information concerning the
business and affairs of the other that it has obtained or received
as a result of the discussions leading up to or the entering into,
or obtains or receives in performance of, this Agreement (the
"Information");
9.1.2 not to disclose the Information in whole or in part to any
other person without the other's written consent, save those of
its employees, agents and sub-contractors involved in the
implementation and/or support of the Software and who have a need
to know the same; and
9.1.3 to use the Information solely in connection with the
implementation and/or support of the Software and not for its own
benefit or the benefit of any third party.
9.2 The provisions of clause 9.1 do not apply to the whole or any
part of the Information which is already in the public domain,
lawfully obtained after today free of any duty of confidentiality
otherwise than directly or indirectly from the other party to this
Agreement, or can be shown to be already in the other's possession
other than as a result of a breach of this clause 9.
9.3 This clause 9 has continuing effect after termination of this
Agreement. For the avoidance of doubt nothing in this clause 9
shall prevent Mandoforms from referring to Customer as its
customer.
10 Force Majeure
Neither party will be liable for any breach of its obligations
resulting from an event beyond that party's reasonable control.
The party affected by such an event agrees to give written notice
to the other upon becoming aware of the event, that notice
containing details of the circumstances giving rise to the event.
11 Waiver
The failure or delay by either party to exercise or enforce any of
its rights or to enforce any obligation which the other party is
in breach of under this Agreement is not a waiver of that right
and nor will it bar enforcement of that obligation (or any similar
or other obligation) at that time or at any subsequent time.
12 Notices
12.1 Any notice or other document to be served under this
Agreement must be in writing, and a notice or other document will
be effectively served if served in the following ways (and shall
be deemed to have been served at the times stated):
12.1.1 by pre-paid special delivery post - on the second day
after posting;
12.1.2 by fax - upon receipt of an error-free reception code
(provided that a copy is sent by pre-paid first class post on the
date the fax is sent);
12.1.3 by e-mail - on sending (provided that a copy is sent by
pre-paid first class post on the date the e-mail is sent); and
12.1.4 by personal delivery - upon actual delivery or upon
refusal to accept delivery.
12.2 Any notice or other document to be served under this
Agreement shall be addressed to the recipient's address stated in
the Order Form or any other address of which the recipient has
notified the other party (or alternatively in the case of a
company, to the registered office of that company).
13 Severance
If any provision of this Agreement, or of any document made in
connection with this Agreement, is determined by any court,
tribunal or administrative body of a competent jurisdiction to be
wholly or partly unenforceable for any reason, that
unenforceability shall not affect the rest of this Agreement or
that document, the unenforceable part being deemed severed and
deleted and the remainder continuing in full force and effect.
14 Entire Agreement
This Agreement (including the Order Form once completed) forms the
entire agreement between the parties on its subject matter and
supersedes all previous contracts, arrangements, representations
(save that it shall not apply to avoid liability for fraudulent
misrepresentations) or understandings between Mandoforms and
Customer, in each case, whether written, arising from custom or
oral. This Agreement may not be varied otherwise than in writing
and signed by duly authorised representatives of both parties.
15 Assignment
15.1 Customer may not assign, transfer, mortgage, charge or
otherwise dispose of or encumber this Agreement, or any of its
rights or obligations under it, without the prior written consent
of Mandoforms.
15.2 Mandoforms may sub-contract any or all of its obligations
under this Agreement, subject only to accepting the sub-
contractor's acts as its own.
15.3 Mandoforms may assign its rights and obligations under
this Agreement without consent on giving written notice to
Customer.
16 Law
This Agreement is governed by and is to be construed in accordance
with English Law and the parties agree to submit to the exclusive
jurisdiction of the English courts.
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