Standard Terms (Software2 Limited)
Software2 Standard Terms and Conditions for the Supply of Software
Last updated: 09:50AM, August 2, 2021
1.1 The following definitions and rules of interpretation apply in this Agreement:
Agreement: the agreement between Software2 and the Licensee for the supply of Services in accordance with these Conditions;
Authorised Representatives: has the meaning given to it in clause 10.2;
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Business Hours: has the meaning set out in the Support Services Specification;
Commencement Date: has the meaning given to it in the Order;
Conditions: these terms and conditions as amended from time to time and as varied by the Order (if applicable);
Confidential Information: all confidential and/or proprietary information (however recorded or preserved) disclosed by either party (or its employees, officers, representatives or advisers) to the other party (or its employees, officers, representatives or advisers) concerning or relating to the terms of this Agreement; any information developed by any party in the course of carrying out its obligations in this Agreement, and any information that would be regarded as confidential by a reasonable business person relating to (i) the business, affairs, customers, clients, suppliers, plans, of the other party and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the other party;
Data Processing Agreement: the terms and conditions which apply to Software2’s processing of personal data on behalf of the Licensee as set out at https://www.software2.com/data-security-and-eu-data-protection/data-processing-agreement;
Device: the physical data processing device on which the relevant elements of the Licensed Software is installed;
Device Licence: a licence to Licensee of the Licensed Software that applies to specific Licensee-owned Devices, as described further in clause 3.3;
Documentation: any documentation made available by Software2 to the Licensee in relation to the Licensed Software;
Extended Term: has the meaning given to it in clause 5.1;
End User: a person who uses the Licensed Software or installs the client side application of the Licensed Software and uses the same to access further software in accordance with this Agreement;
EULA: Software2’s end user licence agreement as updated from time to time, available at www.software2.com/EULA;
Export Control Laws: has the meaning given to it in clause 10.4;
Fees: the Licence Fee and any applicable Professional Services Fee and/or Packaging Services Fee as set out in the Order;
Initial Licence Fee: the initial fee payable for the first Support Period as set out in the Order;
Initial Term: the initial term set out in the Order;
Insolvency Event: the other party: (a) enters liquidation or a winding up petition is presented against the company; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes to make any arrangements with its creditors or passes a resolution to place the company into liquidation; or (d) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
Licence Fee: the Initial Licence Fee together with any Subsequent Licence Fee charged to Licensee by Software2 for the license granted to Licensee, and for any applicable Support Services for the Licensed Software;
Licence Maximum: (a) in respect of Site Licences, the figures agreed with reference to the HESA Student FTE numbers as set out in clause 3.2; and (b) in respect of Device Licences, the number set out in the Order;
Licensed Materials: the Licensed Software and the Documentation;
Licensed Software: the software licensed to Licensee as set out in the Order and any Upgrades;
Licence Type: the type of licence selected by the Licensee as set out in the Order;
New Version: any new version of the Licensed Software which from time to time is publicly marketed and offered for purchase by Software2 in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
Open-source Software: open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org);
Order: the Licensee’s order for Services as set out in the Licensee’s purchase order form, the Licensee’s acceptance of a quotation by Software2, or overleaf, as the case may be;
Packaging Subscription Credits: the credits purchased by the Licensee to be used against any Packaging Services in accordance with the Packaging Subscription Specification;
Packaging Subscription Services: the subscription to the Software2 packaging service as further described in the Packaging Subscription Specification;
Packaging Subscription Specification: the document detailing the Packaging Subscription Services as set out in https://www.software2.com/terms-and-conditions#packaging-subscription-specification;
Professional Services: the professional services as set out in the Order
Professional Services Fee: the fee for any applicable Professional Services as set out in the Order;
Renewal Quote: has the meaning given to such term in clause 5.3.
Services: the services provided by Software2 to the Licensee under this Agreement, including provision of Licensed Materials, Support Services, any Packaging Services and any Professional Services;
Site: the premises from which the Licensee carries out its business as specified in the Order or as notified to Software2 in writing from time to time;
Site Licence: a licence to Licensee of the Licensed Software that applies to the whole of the Licensee’s Site, as described further in clause 3.2;
Specification: the description of the Licensed Software provided by Software2 to the Licensee as set out in the Documentation;
Subsequent Licence Fee: the subsequent fees payable for the licence after the first Support Period as set out in the Order;
Subsequent Order: an order for additional Professional Services, Packaging Subscription Credits and/or an increase in the number of licensed Devices placed by the Licensee after the Commencement Date using the process set out in clause 4.4; Support Period: each period of 12 consecutive months during the Term (or shorter period in the period immediately prior to the end of the Term), the first Support Period being the 12 consecutive months immediately following the Commencement Date;
Support Services: support of the Licensed Software as described in the Support Services Specification;
Support Services Specification: the document detailing the Support Services as set out in https://www.software2.com/terms-and-conditions#support-services-specification;
Term: the Initial Term and any Extended Term;
Third-Party Additional Terms: the additional terms and conditions relating to Third-Party Software as notified by Software2 to the Licensee from time to time;
Third-Party Software: the third-party software used as part of the Licensed Software as set out in the Order;
Third-Party Software Provider: the proprietor of the relevant Third-Party Software; and
Upgrades: a release of the Licenced Software that corrects faults, adds functionality or otherwise amends or upgrades the Licensed Software but which does not constitute a New Version.
1.2 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 If there is any inconsistency or conflict between the terms of this Agreement, any Order or the Data Processing Agreement, the following order of priority shall apply (with (a) being the highest in priority and (c) being the lowest): (a) the Order and any Subsequent Order; (b) this Agreement; (c) the Data Processing Agreement.
2. BASIS OF AGREEMENT
2.1 The Order constitutes an offer by the Licensee to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Software2 issues written acceptance of the Order at which point, and on which date the Agreement shall come into existence.
2.3 Any samples, drawings, descriptive matter or advertising issued by Software2, and any descriptions or illustrations contained in Software2’s catalogues or brochures, or contained on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms that the Licensee seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Other than in the context of any renewal of the purchase of the Services, after the Extended Period in accordance with clause 5.3, any quotation given by Software2 shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.
3. SCOPE OF LICENSE AND SUPPORT
3.1 In consideration of the Fees paid by the Licensee to Software2, Software2 hereby grants to Licensee, a non-exclusive, non-transferable (except as provided below) license, without the right to sublicense, for the Term to use the Licensed Materials in accordance with this Agreement.
3.2 If the Licence Type is a Site Licence, the relevant client side application component of the Licensed Software may be used in respect of either Licensee-owned Devices or End User-owned Devices. The Licensee acknowledges that the Licence Fee for Site Licences is priced by reference to the published Higher Education Statistics Agency (“HESA”) student Full Time Equivalent (“FTE”) numbers of the Licensee. Software2 may increase the Licence Fee at any time (in accordance with the standard licence fee bands adopted by Software2 and available on request from time to time) if the Licensee merges with, or is taken over by, another entity/institution, or if it otherwise increases student numbers itself (whether by taking over other institutions, or additional sites or otherwise), such that the published HESA student FTE number for the Licensee (or the entity it is taken over by or merges with) increases by 20% or more. Notwithstanding the foregoing, the Licensee shall notify Software2 as soon as reasonably practicable upon becoming aware of an increase in student numbers.
3.3 If the Licence Type is a Device Licence, the licence of the Licensed Software is limited to use of the relevant client side application of the Licensed Software on Licensee-owned Devices. Software2 shall provide the Licensee with a licence key, which the Licensee may use to download the client side application of the Licensed Software on to the number of Devices set out in the Order. If the number of Devices onto which the Licensee downloads the client side application of the Licensed Software exceeds the number previously agreed, Software2 may expand the scope of the licence and the provisions of clause 4.4 shall apply.
3.4 Software2 shall provide Licensee with the Support Services as specified in the Support Services Specification.
3.5 Without prejudice to any of its other obligations in this Agreement, Licensee shall:
3.5.1 prepare the Licensee’s Devices, computer network and environment (including, its Site and servers) for the installation and use of the Licensed Software, prior to any such installation or use; and
3.5.2 provide such access (including without limitation remote access), on a timely basis, to the Licensee’s Site, servers, network and computer systems as may reasonably be required by Software2 to perform its obligations under this Agreement.
3.6 Software2 will provide Upgrades of the Licensed Software generally made available to its customers at such times as it may determine in its discretion. Licensee shall adopt and use any such upgraded Licensed Software as may be provided by Software2 as soon as reasonably practicable after receipt but in any event within 4 weeks of the Upgrade being released to it. The Licensee acknowledges that the warranties provided in clause 6 relate to the latest version (from time to time) of the Licensed Software only and will not apply if the Licensee does not comply with this clause.
3.7 If the Licensee orders Packaging Subscription Services, Software2 shall provide such Packaging Subscription Services in accordance with the Packaging Subscription Specification.
3.8 Any dates supplied by Software2 for delivery of any Services under this Agreement shall be treated as approximate only. Software2 shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates. Time shall not be of the essence.
3.9 In relation to scope of use:
3.9.1 for the purposes of clause 3.1 and irrespective of the Licence Type, use of the Licensed Materials shall be restricted to use of it in object code form for the Licensee’s normal business purposes (which shall not include allowing the use of the Licensed Materials by, or for the benefit of, any person other than End Users);
3.9.2 the Licensee may not use the Licensed Materials other than as specified in this Agreement without Software2’s prior written consent, and the Licensee acknowledges that additional fees may be payable on any change of use approved by the Licensee;
3.9.3 the Licensee may make backup copies of the Licensed Materials as may be necessary for its lawful use in accordance with this Agreement. The Licensee shall record the number and location of all copies of the Licensed Materials and take steps to prevent unauthorised copying;
3.9.4 except as expressly stated in this clause 2, the Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licensed Software in whole or in part except to the extent that any reduction of the Licensed Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Licensed Software with the operation of other software or systems used by the Licensee, unless Software2 is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Licensee shall request Software2 to carry out such action or to provide such information (and shall meet Software2’s reasonable costs in providing that information) before undertaking any such reduction;
3.9.5 the Third-Party Software shall be deemed to be incorporated within the Licensed Software for the purposes of this Agreement (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms;
3.9.6 the Licensee shall indemnify and hold Software2 harmless against any loss or damage it may suffer or incur as a result of the Licensee’s breach of any Third-Party Additional Terms howsoever arising; and
3.9.7 Software2 may treat the Licensee’s breach of any Third-Party Additional Terms as a breach of this Agreement.
3.10 The Licensee may not use any such information provided by Software2 or obtained by the Licensee during any such reduction permitted under clause 3.9.4 to create any software whose expression is substantially similar to that of the Licensed Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.11 The Licensee shall not, without Software2’s prior written consent:
3.11.1 sub-license, assign or novate the benefit or burden of this Agreement in whole or in part;
3.11.2 allow the Licensed Software to become the subject of any charge, lien or encumbrance; and/or
3.11.3 deal in any other manner with any or all of its obligations under this Agreement.
3.12 The Licensee shall:
3.12.1 ensure that the number of persons using the Licensed Software does not exceed the Licence Maximum;
3.12.2 ensure that the Licensed Software is installed on designated Devices only;
3.12.3 keep a complete and accurate record of the Licensee’s copying and disclosure of the Licensed Software and its users, and produce such record to Software2 on request from time to time;
3.12.4 ensure that each End User has sight of, agrees to, and complies with the terms of the EULA. The Licensee shall remain responsible for any breach by any End User of the terms of the EULA and shall indemnify and hold Software2 harmless against any loss or damage it may suffer or incur as a result of an End User’s breach of any term of such EULA;
3.12.5 ensure that each End User has sight of Software2’s data protection statement as set out at https://www.software2.com/data-security-and-eu-data-protection and as updated from time to time;
3.12.6 notify Software2 as soon as it becomes aware of any unauthorised use of the Licensed Software by any person;
3.12.7 pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which Software2 would have levied (in accordance with its normal commercial terms then current) had it licensed such unauthorised use on the date when such use commenced; and
3.12.8 permit Software2 to inspect and have access to any premises (and to the computer equipment or any Devices located there) at or which the Licensed Software is being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Licensee is complying with the terms of this Agreement, provided that Software2 provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times.
3.13 As part of the Services, Software2 will make available, via the Licensed Software, other independent websites, apps and/or software which are provided by independent third parties (“Independent Apps”). Such Independent Apps are not under Software2’s control and Software2 will not be liable or responsible in any way for the Licensee’s use of them. The Licensee acknowledges and agrees that:
3.13.1 it is the Licensee’s sole responsibility to ensure it has the necessary licences and consents required to enable Software2 to provide the Services and for the Licensee to use such Independent Apps; and
3.13.2 Software2 has not checked or approved the content of any Independent Apps or of any terms which apply to them.
4.1 The Licensee shall pay the Fees any applicable Professional Services Fee, and, where applicable, the Packaging Subscription Fee in accordance with this clause 4.
4.2 The Licensee shall pay the Initial Licence Fee and, where applicable, the Subsequent Licence Fee at the intervals specified in the Order.
4.3 If the Term is greater than 2 years, the Fees shall be subject to an annual increase, (applicable from the end of the second Support Period, regardless of when the Fees are due to be paid), equal to any percentage increase in the Retail Prices Index in the immediately preceding 12 month period for which such data is made publicly available (or, in respect of the Licence Fee, in the 12 month period for which such data is made publicly available immediately preceding the date of Software2’s invoice).
4.4 Licensee may at any time during the Term purchase additional Professional Services, Packaging Subscription Credits and/or increase the number of licensed Devices or Sites, by submitting to Software2 an Order using the following process: (a) the Licensee shall notify Software2 of the additional Professional Services, Packaging Subscription Credits and/or increases licensed Devices or Sites it wishes to purchase; (b) Software2 shall provide a quote to the Licensee which shall set out the price for such additional services and shall be calculated in accordance with the provisions of the Agreement or (if there are no such provisions) with Software2’s standard price list then in force; and (c) if the Licensee wishes to proceed with the purchase based on the quote provided by Software2, it shall submit a purchase order for such additional services. The Licensee shall pay the price for any additional Order within thirty (30) days of the date of the Order. The Licensee acknowledges and agrees that: (a) any Order raised will be subject to the terms of this Agreement; (b) this Agreement will apply to the Order to the exclusion of any other terms that the Licensee seeks to impose or incorporate, or which are implied by law, trade custom or practice or course of dealing; and (c) any quotation given by Software2 shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
4.5 Support Services provided pursuant to this Agreement are provided remotely in accordance with the Support Services Specification. If the Licensee requests Site visits or any other travel by Software2 employees, such travel and incidental expenses will be chargeable separately to, and paid for by, Licensee in addition.
4.6 The Licensee shall pay all Fees in full, cleared funds, and in pounds sterling, on the applicable due dates to the bank account nominated in writing by Software2 from time to time.
4.7 All amounts payable by the Licensee under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Agreement by Software2 to the Licensee, the Licensee shall, on receipt of a valid VAT invoice from Software2, pay to Software2 such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.8 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.9 If the Licensee fails to make any payment due under this Agreement by the due date for payment, then, without limiting any of Software2’s other rights and remedies under this Agreement, the Licensee shall pay interest on the overdue amount from the due date until payment of the overdue amount, whether before or after judgment. Interest under this clause 4.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.10 If the Agreement includes the provision of Professional Services, the Commercial Terms or, where applicable, any Subsequent Order, will set out the number of days’ worth of Professional Services that the Licensee is entitled to together with the Professional Services Fee. The Licensee shall pay to Software2 such Professional Services Fee within 30 days of the date of Software2’s invoice for the same. Subject to payment of the Professional Services Fee, the Licensee shall be entitled to “book” or “call-off” Professional Services days. Only full days (of 8 working hours, which includes a one-hour lunch break and a further 15 mins break) can be called off. Pre-paid Professional Services days are valid for 6 months from the date of payment (after which unused days shall expire and cannot be called off and, for the avoidance of doubt, there shall be no refund of any Professional Services Fees paid by the Licensee in respect of expired days). If a Professional Service day is booked or called off by the Licensee, and then subsequently cancelled by the Licensee, the Licensee shall forfeit (and be deemed to have used) that day if notice of cancellation is received by Software2 less than eight days before the agreed date for providing the said Professional Services. If a Professional Service day is cancelled by the Licensee between eight and fourteen days before the agreed date for providing the said Professional Services, the Licensee shall forfeit (and be deemed to have used) half of that day (and in either case shall not be entitled to either re-book, or otherwise receive any refund of the Professional Services Fee in respect of the forfeited day/half day). Notwithstanding the foregoing, Software2 may, at its sole discretion, agree to allow the Licensee to file the cancelled day on account for the Licensee to use on a different day throughout the Term.
4.11 For the avoidance of doubt, the Licensee shall be liable for compliance with all of its obligations in this Agreement, including without limitation all of its payment obligations, whether or not it outsources or otherwise arranges for payment of Fees to be made by a procurement (or other) agent on its behalf.
5. TERM & TERMINATION
5.1 Subject to clause 5.2 and 5.3 and to the provisions for early termination contained in clause 5.5, this Agreement will commence (or be deemed to have commenced) on the Commencement Date and will continue for the Initial Term. Upon expiry of the Initial Term, this Agreement will automatically renew for successive periods as set out in the Order or any Renewal Quote (each an “Extended Term”).
5.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement by giving the other party not less than 60 days’ written notice to terminate (such notice cannot expire prior to the end of the Initial Term, or the end of any Extended Term, as the case may be).
5.3 Prior to expiry of the Initial Term, or any Extended Term (as the case may be), Software2 may issue a quotation for a renewal of the purchase of the Services in the subsequent Extended Term. Where this is the case, Software2 shall issue the Licensee a renewed quote for the Fees to be paid by the Licensee during such subsequent Extended Term (“Renewal Quote”). Upon the Licensee returning a signed copy of the Renewal Quote to Software2, the provision of the Services shall continue for the subsequent Extended Term, the Agreement shall automatically continue subject to the updated Fees set out in the Renewal Quote, and these Conditions shall continue to apply unamended.
5.4 Where the Licensee fails to return a signed copy of the Renewal Quote prior to the expiry of the Initial Term, or the current Extended Term, as the case may be, this Agreement shall terminate upon the expiry of the Initial Term, or current Extended Term (as the case may be).
5.5 Without affecting any other rights or remedies available to the parties, either party may terminate the Agreement immediately upon written notice to the other party if:
5.5.1 the other party commits a material breach of any of the terms of this Agreement which is irremediable or (if such breach is capable of remedy) fails to remedy that breach within 60 days of that party being notified in writing of the breach;
5.5.2 the other party fails to pay any amount due under the Agreement within 7 days of the due date for payment; and/or
5.5.3 one or more of the following applies to the other party: (a) it is unable to pay its debts; (b) it ceases to trade; or (c) it suffers an Insolvency Event.
5.6 On termination of this Agreement for any reason:
5.6.1 all rights granted to the Licensee under this Agreement shall cease;
5.6.2 the Licensee shall cease all activities authorised by this Agreement;
5.6.3 the Licensee shall immediately pay to Software2 any sums due to it under this Agreement;
5.6.4 the Licensee shall immediately destroy or return to Software2 (at Software2’s option) all copies of the Licensed Materials and any Confidential Information then in its possession, custody or control and, in the case of destruction, certify to Software2 that it has done so; and
5.6.5 any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
6.1 Software2 warrants that, as at the Effective Date, the Licensed Software shall conform in all material respects with the Specification, provided that the configuration of Devices running any element of the Licensed Software is in accordance in all respects with any operating system requirements set out in the Documentation. Software2 does not and cannot warrant that the Licensed Software will function with all Devices.
6.2 Subject to clause 6.4, if within 90 calendar days from the Effective Date, the Licensee notifies Software2 in writing of any defect or fault in the Licensed Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from Licensee, or anyone acting with the authority of Licensee, having amended the Licensed Software or used it outside the terms of this Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by Software2, or it has not been loaded onto or used on to Devices approved by Software2, Software2 shall, at its option, do one of the following:
6.2.1 repair the Licensed Software;
6.2.2 replace the Licensed Software; or
6.2.3 terminate this Agreement immediately by notice in writing to the Licensee and refund any of the Licence Fees paid by the Licensee as at the date of termination (less a reasonable sum in respect of the Licensee's use of the Licensed Software to the date of termination) on return of the Licensed Software and all copies thereof,
provided the Licensee provides all the information that may be necessary to assist Software2 in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Software2 to re-create the defect or fault. The provisions of this clause 6.2 are the Licensee’s sole remedy for failure of the Licensed Software to perform as warranted in clause 6.1 or otherwise in respect of the performance of the Licensed Software.
6.3 The Services provided by Software2 under this Agreement shall conform to the standards generally observed in the industry for similar services and shall be performed using reasonable care and skill.
6.4 Software2 does not warrant that the use of the Licensed Software will be uninterrupted or error-free. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
6.5 The Licensee accepts responsibility for the selection of the Licensed Software to achieve its intended results and acknowledges that the Licensed Software has not been developed to meet the individual requirements of the Licensee.
6.6 The Licensee acknowledges that any Open-Source Software and/or Third-Party Software provided or made available by Software2 is provided “as is” and is expressly subject to the disclaimer contained in clause 6.4.
7. LIMITATION OF LIABILITY
7.1 Nothing in this Agreement limits or excludes Software2’s liability for: (a) death or personal injury caused by the negligence of Software2, its officers, employees, contractors or agents; (b) fraud or fraudulent misrepresentation; (c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (d) any other liability which may not be limited or excluded by law.
7.2 Subject to clause 7.1:
7.2.1 Software2 shall not in any circumstances have any liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (a) special damage even if Software2 was aware of the circumstances in which such special damage could arise; (b) loss of profits; (c) loss of anticipated savings; (d) loss of goodwill; (e) loss or corruption of data; (f) any indirect losses; or (g) any consequential losses; and
7.2.2 Software2’s total liability, whether in contract, tort (including negligence) or otherwise arising as a result of or in connection with this Agreement, shall in no circumstances exceed a sum equal to the total Fees paid or payable by the Licensee to Software2 in the Support Period in force at the time the act or omission giving rise to the claim arises. For the purposes of any liability arising after termination, the relevant Support Period will be the Support Period immediately prior to termination.
8. INTELLECTUAL PROPERTY
8.1 The Licensee acknowledges that all Intellectual Property Rights in the Licensed Materials and any Upgrades belong and shall belong to Software2 or the relevant Third-Party Software Provider (as the case may be), and the Licensee shall have no rights in or to the Licensed Materials other than the right to use them in accordance with the terms of this Agreement.
8.2 Licensee shall not remove or alter any copyright notices or proprietary legends affixed by the Software Provider to the Licensed Materials.
8.3 Software2 undertakes at its own expense to defend the Licensee or, at its option, settle any claim or action brought against the Licensee alleging that the possession of the Licensed Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including reasonable legal fees) and expenses incurred by or awarded against the Licensee as a result of or in connection with any such Claim. For the avoidance of doubt, this clause 8.3 shall not apply where the Claim in question is attributable to possession or use of the Licensed Software (or any part thereof) by the Licensee in combination with any hardware or software not supplied or specified by Software2 if the infringement would have been avoided by the use of the Licensed Software not so combined, or use of a non-current release of the Licensed Software.
8.4 If any third party makes a Claim, or notifies an intention to make a Claim against the Licensee, Software2’s obligations under clause 8.3 are conditional on the Licensee:
8.4.1 as soon as reasonably practicable, giving written notice of the Claim to Software2 specifying the nature of the Claim in reasonable detail;
8.4.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Software2 (such consent not to be unreasonably conditioned, withheld or delayed);
8.4.3 giving Software2 and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Licensee so as to enable Software2 and its professional advisers to examine them and to take copies (at Software2’s expense) for the purpose of assessing the Claim; and
8.4.4 subject to Software2 providing security to the Licensee to the Licensee’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Software2 may reasonably request to avoid, dispute, compromise or defend the Claim.
8.5 If any Claim is made, or in Software2’s reasonable opinion is likely to be made, against the Licensee, Software2 may at its sole option and expense:
8.5.1 procure for the Licensee the right to continue to use the Licensed Software (or any part thereof) in accordance with the terms of this Agreement;
8.5.2 modify the Licensed Software so that it ceases to be infringing;
8.5.3 replace the Licensed Software with non-infringing software; or
8.5.4 terminate this Agreement immediately by notice in writing to the Licensee and refund any of the Fees paid by the Licensee as at the date of termination (less a reasonable sum in respect of the Licensee’s use of the Licensed Software to the date of termination) on return of the Licensed Software and all copies thereof,
provided that if Software2 modifies or replaces the Licensed Software, the modified or replacement Licensed Software must comply with the warranties contained in clause 6 and the Licensee shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
8.6 Notwithstanding any other provision in this Agreement, clause 8.3 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Licensee.
8.7 This clause 8 constitutes the Licensee’s exclusive remedy and Software2’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 7.2.
9. DATA PROTECTION
9.1 The terms of the Data Processing Agreement apply to the processing of personal data by Software2 on behalf of the Licensee.
9.2 Software2 may collect, analyse and anonymise data, statistics or other information obtained through the provision, use and performance of various aspects of the Licensed Software (collectively “Analytics”) and aggregate such data, statistics or other information with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Licensed Software, as long as in doing so, Software2 does not re-identify any of the Analytics or otherwise link or associate Analytics with any information relating to: (i) Licensee; or (ii) an identified or identifiable natural person.
10. CONFIDENTIAL INFORMATION
10.1 If a party acquires, or has disclosed to it, Confidential Information of the other party pursuant to the Agreement, the provisions of this clause 9 shall apply. A party's Confidential Information shall not include information that:
10.1.1 is or becomes publicly known through no act or omission of the receiving party;
10.1.2 was in the receiving party's lawful possession prior to the disclosure; or
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party (except its employees, officers, representatives, contractors, subcontractors or advisers who need to know such Confidential Information for the purposes of carrying out its obligations under this Agreement (“Authorised Representatives”)) or use the other's Confidential Information for any purpose other than exercising its rights and performing its obligations under or in connection with the Agreement. Each party shall ensure that its Authorised Representatives to whom it discloses the other party’s Confidential Information comply with this clause 10.
10.3 For the avoidance of doubt, as between the parties to this Agreement, the Licensed Materials constitute the Confidential Information of Software2.
10.4 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
10.5 Each party undertakes:
10.5.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out in clause 10.4; and
10.5.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
11.1 Assignment and Subcontracting. Licensee shall not without Software2’s prior written consent assign, sublicense, charge, deal with or otherwise transfer this Agreement to any third party.
11.2 Entire Agreement.
11.2.1 This Agreement (and any Order entered into between the parties) contains the entire understanding of the parties and supersedes all previous verbal and written agreements between the parties, promises, assurances, warranties, representations and understandings between the parties concerning licensing of the Licensed Materials and the provision of Services.
11.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that is shall have no claim for innocent or negligent misstatement or negligent misstatement based on any statement in the Agreement.
11.3 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
11.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the remaining provisions of the Agreement. If any provision of the Agreement is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.6 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument. For the avoidance of doubt, any electronic signature will be valid if it is accompanied by an electronic certificate evidencing authenticity.
11.7 Notices. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be: (a) delivered by hand or pre-paid first-class post or other next working day delivery service at its registered office or principal place of business; or (b) in the case of the Licensee sent by email to the address specified in the Order and in the case of Software2 sent by email to email@example.com. Any notice shall be deemed to have been received: (i) if delivered by hand, at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00am on the second Business Day after posting; or (iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.7, business hours means 9:00am to 5:00pm Monday to Friday on a day that is not a public holiday in the place of receipt. This clause does not apply to the service of any proceedings or other documents in any legal action.
11.8 Relationship of the Parties. It is agreed that the relationship of the parties is primarily that of licensee and licensor. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other.
11.9 Third Party Rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.
11.10 Governing law and jurisdiction. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation, shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England shall have the exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.