The following terms (hereinafter referred to as the ‘Terms’) are effective
BETWEEN
- Bright SG Limited incorporated and registered in England and Wales whose registered office is Semcon House, Edgehill Drive, Warwick, CV34 6NH, United Kingdom(“BSGL”); and
- you (the ‘Licensee’).
RECITALS
- BSGL owns the MTDfVAT software and makes it available to subscribers via the internet.
- The Licensee wishes to use the Service in its business operations.
- These Terms govern the use by the Licensee of BSGL’s Service as currently existing and subsequently enhanced or modified.
1. DEFINITIONS
1.1. In this Agreement the following terms shall have the following meanings:
| “Effective Date” | is the date that these Terms are accepted by Licensee. |
| “Fees” | are the fees payable by the Licensee to BSGL for the Software. |
| “Licensee” | is the company, firm, individual or other entity registered and licensed to use the Service. |
| “Licensee Data” | is the data inputted by the Licensee, Users, or BSGL on the Licensee’s behalf for the purpose of using the Service or facilitating the Licensee’s use of the Service. |
| “BSGL’s Websites” | means the web pages at the URL’s provided by BSGL. |
| “Service” | is the provision of the Software and related service as available through BSGL’s websites. |
| “Software” | means the MTDfVAT software and/or any other software provided hereunder. |
| “Term” | means the term set out in clause 11.1. |
| “Users” | are those employees, agents and independent contractors of the Licensee who are authorised by the Licensee to use the Service. |
| “Virus” | means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices. |
2. LIMITED LICENCE
Subject to the terms and conditions herein, BSGL grants to Licensee a non-exclusive, non-transferable right to permit the Licensee to use the Service during the Term solely for the Licensee’s internal business operations. Each person who accesses the Service must have an individual User name. User names cannot be shared.
3. PROVISION OF SERVICE AND CONTINUITY OF SERVICE
3.1. BSGL shall use commercially reasonable endeavours to make sure the Service is available on-line 24 hours per day, seven days a week, for the Term, subject to the following qualifications.
3.1.1. BSGL retains the right to take the Service off-line to perform planned and unplanned maintenance of its servers and shall take all reasonable steps to restore service as quickly as possible.
3.1.2. The Licensee acknowledges that the Service will be unavailable from time to time because of the nature of the Internet, and agrees that BSGL is not responsible for interruptions to the Service caused by third parties.
3.2. BSGL will, as part of the Service and at no additional cost to the Licensee, provide the Licensee with BSGL’s standard support service as set out in clause 7. BSGL may amend the support service policy in its sole and absolute discretion from time to time.
3.3. The Licensee undertakes to:
3.3.1. co-operate with BSGL and provide all information necessary under these Terms;
3.3.2. ensure that all authorised users of the Service comply with these Terms;
3.3.3. ensure that its IT network and systems comply with any requirements specified by BSGL in any Help file, technical specifications or on BSGL’s Websites;
3.3.4. ensure that the number of Users using the Service does not exceed the number of User Subscriptions it has purchased from time to time.
3.4. The Licensee shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:
3.4.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.4.2. facilitates illegal activity;
3.4.3. depicts sexually explicit images;
3.4.4. promotes unlawful violence;
3.4.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.4.6. in a manner that is otherwise illegal or causes damage or injury to any person or property;
3.5. The Licensee shall not:
3.5.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
3.5.1.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
3.5.1.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.5.2. access all or any part of the Service or materials owned by BSGL in order to build a product or service which competes with the Service; or
3.5.3. use the Service and/or BSGL materials to provide Service to third parties; or
3.5.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or BSGL materials available to any third party except the Users, or
3.5.5. attempt to obtain, or assist third parties in obtaining, access to the Service and/or BSGL materials, other than as provided under this clause 3.
3.6. The Licensee shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify BSGL.
3.7. The rights provided under this clause 3 are granted to the Licensee only.
4. CONFIDENTIALITY OF DATA
4.1. Both parties acknowledge that:
4.1.1. all information disclosed or made available by one party to the other which is either:
4.1.1.1. marked by the disclosing party as “confidential”; or
4.1.1.2. which is by its nature confidential
shall be treated by the other party as confidential; and
4.1.2. information entered in to the Software by Users of the Service will be considered to be confidential information.
4.2. A party’s Confidential Information shall not be deemed to include information that:
4.2.1. is or becomes publicly known other than through any act or omission of the receiving party;
4.2.2. was in the other party’s lawful possession before the disclosure;
4.2.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
4.2.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
4.2.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
4.3. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
4.4. This clause shall survive termination of these Terms, however arising.
5. PERSONAL DATA
In performing this Agreement, BSGL shall comply with all UK data protection law and the EU General Data Protection Regulation (GDPR).
6. DATA BACKUPS AND DOWNLOADS
BSGL undertakes to back up all data in the Software on a daily basis. The Licensee acknowledges that it has the ability at any time to print reports containing such data and undertakes to establish its own back up procedures for such data. BSGL shall not be responsible for any loss, destruction, alteration or disclosure of Licensee Data caused by any third party (except those third parties sub-contracted by BSGL to perform Service related to Licensee Data maintenance and back-up).
7. TRAINING & SUPPORT
7.1. BSGL agrees to provide telephone support to the Licensee and to provide a telephone help-line service during normal business hours of 9.00 am to 5.30 pm UK time (excluding public holidays) for assistance in operating the Software. BSGL reserves the right to withdraw standard telephone support (or to charge for it) in the event that any Licensee makes excessive use of it and/or engages in frivolous requests for support.
7.2. BSGL reserves the right to charge for technical support at its standard rates in the following circumstances:
7.2.1. whenever the Licensee is using unsupported hardware or software;
7.2.2. in any situation in which BSGL has assisted the Licensee in migrating data from its existing provider and the Licensee then cancels the licence within 2 months;
7.3. BSGL are not obliged to provide telephone support in respect of: (i) any modification to the Software by any person other than BSGL and/or (ii) any use of the Software which is not in accordance with the terms of this Agreement and/or (iii) which arises out of the non-compliance of the Licensee’s IT systems with the requirement set out in any Help file, technical specifications or on BSGL’s Websites.
7.4. For the avoidance of any doubt, BSGL standard support does not include any travel or subsistence expenses incurred in providing any site support or any program customisation or data conversion – such services may be offered by BSGL at its sole discretion and subject to separate commercial agreement between the parties.
7.5. Any additional services to be provided by BSGL to the Licensee including, but not limited to training, shall be the subject of separate commercial agreement between the parties.
8. WARRANTIES, LIABILITIES & REMEDIES
8.1. The Software shall substantially comply with any Help file setting out the main functionality of the Software. Apart from this, the Software is provided on an “as is” and “as available” basis and no warranty, express or implied, as to condition, quality, performance, satisfactory quality, merchantability or fitness for purpose of the Software is given and all such warranties are hereby excluded. In addition, the Licensee has had an opportunity to evaluate the Software at no cost in a 30 day evaluation period.
8.2. BSGL warrants that the Service provided to the Licensee by BSGL under these Terms shall be provided with reasonable care and skill.
8.3. The Licensee shall own all right, title and interest in and to all of the Licensee Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data.
8.4. BSGL does not warrant that the use of the Software will be uninterrupted or error-free.
8.5. Subject to clause 8.6:
8.5.1. in no event shall BSGL be liable for:
8.5.1.1. any loss of profits, business, anticipated savings, goods, contract, use, depletion of goodwill or similar losses; or
8.5.1.2. any indirect, special, incidental or consequential loss or damage arising from the supply or use of the Service;
8.5.2. the Licensee’s remedy for any damage or loss in any way connected with the Software, or Service provided by BSGL, whether by BSGL’s breach of warranty or any breach of any other duty, shall be, in the first instance re-performance of the Services or replacement of the Software; and
8.5.3. BSGL’s liability for direct losses arising out of or in connection with these Terms shall in no circumstances exceed:
8.5.3.1. in relation to a single claim, 100% of the Fees payable in the first year of service (calculated on the basis that the Service is taken for 12 months) ;
8.5.3.2. in relation to total claims, 200% of the Fees payable in the first year of service (calculated on the basis that the Service is taken for 12 months).
8.6. Nothing in these Terms excludes the liability of BSGL:
8.6.1. for death or personal injury caused by BSGL’s negligence; or
8.6.2. for fraud or fraudulent misrepresentation.
9. IP OWNERSHIP
The Licensee acknowledges and agrees that BSGL owns all intellectual property rights in the Software and related materials. Except as expressly stated herein, these Terms do not transfer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software and related materials, and all right title and interest thereto remains with BSGL.
10. MODIFICATION OF SERVICE
BSGL retains the right to modify the Software and/or Service at any time.
11. TERM AND TERMINATION OF THE LICENCE
11.1. This licence shall, unless otherwise terminated as provided in this clause 11, commence on the Effective Date and BSGL will provide the Service for an initial period of 12 months (“Initial Term”) and subsequently for 12 month periods for as long as the Service is offered and Licensee pays all sums due to BSGL for the Service (each a “Renewal Period”) and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
11.2. Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:
11.2.1. the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
11.2.2. the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
11.2.3. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.3. The Licensee shall also be entitled to terminate the Agreement without cause and receive a full refund of monies paid provided that (i) written notice of termination is received by BSGL within 2 months of the Effective Date (or any renewal date) and (ii) in the event that the Licensee has made significant use of the Software prior to termination, BSGL shall, acting reasonably and in good faith, be entitled to retain a reasonable amount of any monies received to reflect such use.
11.4. At any time, a Licensee making payments by monthly instalments shall be entitled to terminate the licence for convenience on the giving of 90 days’ written notice to BSGL. In the event that a Licensee making payment by monthly instalments terminates the licence or ceases payment without giving such notice, the Licensee shall be required immediately to pay 90 days’ licence fees
11.5. On termination of these Terms for any reason:
11.5.1. all licences granted under these Terms shall immediately terminate, save that for 30 days after the date of termination the Software reverts to evaluation (non-filing) mode and following this, at BSGL’s discretion, the licence may continue in this mode for a period of up to 12 months after the date of termination;
11.5.2. the Licensee shall return and make no further use of any BSGL materials and other items (and all copies of them) belonging to BSGL; and
11.5.3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
12. FEES AND PAYMENT
12.1. The Licensee shall pay the Fees to BSGL for the Service as follows:
12.1.1. Option A: one annual payment in advance to be made no later than the Effective Date; or
12.1.2. Option B: an initial payment equal to two monthly licence fee instalments to be made no later than the Effective Date, followed by 10 monthly licence fee payments, commencing in the third calendar month after the initial payment is due.
12.2. If the Licensee fails to make any payment due to BSGL under these Terms, within 30 days of it being due, then without limiting BSGL’s remedies under these Terms, the Licensee shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. The Licensee shall pay the interest together with the overdue amount.
12.3. BSGL shall be entitled to increase the Fees at the start of each Renewal Period upon 30 days’ prior notice to the Licensee.
13. DISPUTES
Prior to any formal proceedings being commenced in accordance with Clause 19, all disputes between any of the parties arising out of these Terms shall be referred to a designated executive of Licensee and a designated executive of BSGL for resolution.
14. ENTIRE TERMS
These Terms (together with the separate written confirmation of the Software being licensed and the Fees payable) constitute the entire agreement between BSGL and the Licensee in relation to the licensing of the Software and supersede all prior communications, agreements and proposals whether written or oral in relation to its subject matter.
15. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Terms 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.
16. SEVERANCE
If any provision or part-provision of this Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
17. COUNTERPARTS
These Terms may be executed in counterpart, each of which when executed and delivered shall constitute a duplicate original but all the counterparts shall together constitute the one agreement.
18. FORCE MAJEURE
Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure results from events, circumstances or causes beyond its reasonable control.
19. GOVERNING LAW
All matters arising out of or in connection with these Terms shall be governed by and construed in accordance with the laws of England and Wales and, subject to clause 13, the parties submit to the exclusive jurisdiction of the English courts.