Software Licence Agreement
The Licensor has developed and owns or has licensed from third parties
certain computer software applications that will provide video based learning.
The Licensor has agreed to provide to the Licensee access to the above
computer programs and to grant to the Licensee a non-exclusive licence to use
such programs and their associated documentation.
By purchasing, downloading or using this
software, including any third party software made available in conjunction with
this software, you agree to be bound by the following terms and conditions (the
"Terms and Conditions"), which can be updated by us from time to time
without notice. You can review our update version anytime on www.smartlearn.com under Terms and
Conditions.
IT IS
AGREED as
follows:
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance
Date” the date on which the Licensed Programs
are accepted (or deemed to be accepted) by the Licensee.
“Delivery
Date” the delivery date specified in the
invoice or in the payment or when downloaded from our website
“Intellectual
Property all vested contingent and future intellectual
property rights
Rights” including but not limited to
copyright, trade marks, service marks, design rights (whether registered or
unregistered), patents, know-how, trade secrets, inventions, get-up, database
rights and any applications for the protection or registration of these rights
and all renewals and extensions thereof existing in any part of the world
whether now known or in the future created to which the Licensor may be
entitled.
“Location” the
Licensee's premises where the systems, applications and computer programs of
the Licensor specified in the Invoice or his computer IP adress
“Licence” the
licence granted by the Licensor
“Licence Fee” the
fee for the Licence provided under this Agreement
“Licensed
Program the Licensed Programs, the Program
Documentation and the
Materials” Media;
“Licensed
Programs” the systems, data, applications and computer
programs of the Licensor and all releases and versions thereof;
“Media” the
media on which the Licensed Programs and the Program Documentation are recorded
or printed
“Program the
operating manuals, user instructions, technical literature
Documentation” and all other related materials in eye-readable form supplied to the
Licensee by the Licensor for aiding the use and application of the Licensed
Programs;
“Specification” the
specification of the Licensed Programs describing the facilities and functions
thereof
“Use the
Licensed to view all or any part of the Licensed
Programs from
Program Materials” magnetic
or other storage media, to load the Licensed Programs on the Equipment for the
storage and running of the Licensed Programs, to read and possess the Program
Documentation in conjunction with the use of the Licensed Programs and to
possess the Media.
a. The Licensor grants to the Licensee a non-exclusive licence to Use the Licensed Program Materials on and in conjunction with the Equipment subject to the terms and conditions contained in this Agreement.
b. The Licensee shall Use the Licensed Program Materials for processing its own data for its own internal business purposes only.
c. The Licensee shall not without the prior written consent of the Licensor Use the Licensed Program Materials outside the licence granted in the contract.
d. The Licence shall not be deemed to extend to any programs or materials of the Licensor other than the Licensed Program Materials unless specifically agreed to in writing by the Licensor.
e. The Licensee acknowledges that it is licensed to Use the Licensed Program Materials only in accordance with the express terms of this Agreement and not further or otherwise.
The Licence shall commence on the Acceptance Date and shall continue for a period of 1 (one ) year from year to year thereafter until or unless terminated in accordance with any of the provisions of clause of this Agreement.
f. The Licence Fee shall be paid by the Licensee prior installation.
g. Any charges payable by the Licensee under this Agreement in addition to the Licence Fee shall be paid within 7 days after the receipt by the Licensee of the Licensor's invoice.
h. The Licensor shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of Bank of England, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
Risk in the Media shall pass to the Licensee on delivery. If any part of the Media shall thereafter be lost, destroyed or damaged the Licensor shall promptly replace the same (embodying the relevant part of the Licensed Programs or Program Documentation) subject to the Licensee paying the cost of such replacement.
i. The Licensee undertakes not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Licensed Program Materials without the Licensor's prior written consent.
The Licensee shall during the continuance of the Licence:
j. effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
k. retain the Licensed Program Materials and all copies thereof under the Licensee's effective control;
l. maintain a full and accurate record of the Licensee's copying, disclosure and use of the Licensed Program Materials and shall produce such record to the Licensor on request from time to time.
m. The Licensed Program Materials and the Intellectual Property Rights of whatever nature in the Licensed Program Materials are and shall remain the property of the Licensor.
n. The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person.
o. The Licensor shall defend at its own expense any claim brought against the Licensee alleging that the Use of the Licensed Program Materials 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.
p. If, in the Licensor's reasonable opinion, the use of the Licensed Program Materials are 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 Licensed Program Materials which are the subject of the Intellectual Property Claim; or
replace or, with the written consent of the Licensee, modify the Licensed Program Materials which are the subject of the Intellectual Property Claim so they become non-infringing.
q. The Licensor shall have no liability for any Intellectual Property Claim resulting from the Use of the Licensed Program Materials in combination with any equipment (other than the Equipment) or programs not supplied or approved by the Licensor or any modification of any item of the Licensed Programs by a party other than the Licensor or its authorised agent.
r. When notifying a defect or error the Licensee shall provide the Licensor with a documented example of such defect or error.
s. The said warranties above shall be subject to the Licensee complying with its obligations under the terms of this Agreement. In particular, the said warranties shall not apply to the extent that any defect in the Licensed Programs arose or was exacerbated as a result of:
incorrect use, operation or corruption of the Licensed Programs;
any unauthorised modification or alteration of the Licensed Programs;
use of the Licensed Programs with other software or on equipment with which it is incompatible.
t. To the extent permitted by applicable law, the Licensor:
disclaims all other warranties with respect to the Licensed Programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result;
makes no warranty that the Licensed Programs are error free or that its use will be uninterrupted and the Licensee acknowledges and agrees that the existence of such errors shall not constitute a breach of this Agreement;
does not give any warranty in respect of third party products.
UNDER NO CIRCUMSTANCES SHALL SMARTLEARN Ltd or HIS RESELLERS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF SMARTLEAR LEARNING MATERIAL. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
u. Both parties to this Agreement undertake, except as provided below, to treat as confidential and keep secret all information marked 'confidential' or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Licensed Program Materials, the Specification and other information supplied by the Licensee or Licensor (in this Agreement collectively referred to as 'the Information') with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
v. Both parties shall not without the prior written consent of the other party divulge any part of the Information to any person except:
to their own employees and then only to those employees who need to know the same;
to either party's auditors, an officer of Inland Revenue, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right duty or obligation to know the business of the other party and then only in pursuance of such right duty or obligation;
any person who is for the time being appointed by either party to maintain the Equipment on which the Licensed Programs are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain the Equipment.
w. Both parties undertake to ensure that persons and bodies referred to in clause 15.2 are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other party.
x. Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
y. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
z. The Licensee, having completed the first year licence, can terminate the Licence at any time by giving at least 30 days' prior written notice to the Licensor.
aa. The Licensor may terminate the Licence forthwith on giving notice in writing to the Licensee if:
bb. the Licensee commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Licensor to do so, to remedy the breach (such request to contain a warning of the Licensor's intention to terminate
cc. Forthwith upon the termination of the Licence, the Licensee shall return to the Licensor the Licensed Program Materials and all copies of the whole or any part thereof or, if requested by the Licensor, shall destroy the same (in the case of the Licensed Programs by erasing them from the magnetic media on which they are stored) and certify in writing to the Licensor that they have been destroyed. PROVIDED THAT the Licensee may extract and store any Licensee data upon a separate media for continuity purposes.
dd. Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
ee. In this Agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
ff. In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any schedule, the provision in the body of this Agreement shall take precedence.
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party.
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 6 months, either party may terminate this Agreement by written notice to the other party.
gg. All notices under this Agreement shall be in writing.
hh. Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
ii. [This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
the Licensor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and
the Licensor shall have the right to sue for
breach of its intellectual property rights and other proprietary information
and trade secrets ('IPR') (whether in connection with this Agreement or
otherwise) in any country where it believes that infringement or a breach of
this Agreement relating to its IPR might be taking place. For the avoidance of
doubt, the place of performance of this Agreement is agreed by the parties to
be
jj. Each party recognises that the other party's business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
kk. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties ('representatives') shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
ll. If the parties cannot resolve a dispute, then they shall with the assistance of the Centre for Effective Dispute Resolution ('CEDR'), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution ('ADR') procedure acceptable to both parties before pursuing any other remedies available to them. If either party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both parties within 90 days after it has arisen, the matter shall be settled in accordance with the procedure below.
mm.
If the parties cannot resolve
the dispute by the procedure set out above, the parties shall irrevocably
submit to the exclusive jurisdiction of the courts of