This licence and support services agreement (the “Agreement”) is a legal agreement between you (“Licensee” or “you”) and Personal Audit Systems Limited a company registered in England with number 03239788 and whose registered office is at Unit 5, Enterprise House, Manchester Science Park, Pencroft Way, Manchester, M15 6SE (the “Supplier” or “we”) for the P11D Organiser™ software product (the “Software”), which includes computer software, documentation (the “Documentation”) and any subsequent modification, enhancement and variation of the same.
BY EITHER OPENING THIS PACKAGE OR CLICKING ON THE ON-SCREEN “ACCEPT” BUTTON OR OTHERWISE USING THIS SOFTWARE YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW BY CLICKING ON THE ON-SCREEN “REJECT” BUTTON OR RETURNING TO THE SUPPLIER WITHIN 14 DAYS OF OPENING THE SOFTWARE, ITS PACKAGING AND DOCUMENTATION UNUSED AND INTACT. IN ALL CASES YOU MAY NOT CONTINUE TO USE ANY SOFTWARE ALREADY IN YOUR POSSESSION.
In these terms and conditions the following expressions shall have the meanings respectively set against them:
“Access” means access received or gained directly or indirectly;
“Agreed” means agreed with or on behalf of the Supplier; “Associates” means subcontractors and other third parties who provide services to the Licensee solely for the internal business purposes of the Licensee;
“Benefit Statement(s)” means a statement to be produced in order to comply with the applicable taxation regulations relating to employee benefits required to be produced on forms P11D, P9D and any replacements of those forms;
“Fee(s)” means the software licence fee (the “Licence Fee”) and the Support Services fee (the “Support Fee”) set out on the Software Order Form and as may be amended from time to time by notice from the Supplier to the Licensee;
“Good Industry Practise” means the exercise of that degree of skill, diligence, prudence, foresight and practise which would reasonably be expected to be exercised by a reasonably skilled Supplier engaged in the performance of a similar type of service to that to be provided under these terms and conditions;
“Intellectual Property Rights” means patents, design rights, trade marks whether registered or unregistered, copyrights whether registered or not and any applications to register or rights to apply for registration of any of the foregoing rights in know-how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world;
“Licence” means the licence to use the Software as specified in clause 1 and subject always to the terms and conditions set out in this Agreement;
“Licence Period” means an initial period of one Year (as defined below) and each successive Year unless and until terminated by the Licensee or Supplier in accordance with these terms and conditions;
“Limitation(s)” means the limitations on the use of the Software specified in this Agreement and in the Software Order Form and as may be amended from time to time by the Supplier;
“Permitted Hardware” means a personal computer (whether desktop or laptop or notebook) or on a network controlled by the Licensee as is specified in the Software Order Form;
“Software Order Form” means a document from the Licensee to the Supplier that specifies the Licence Fee, the Support Fee and any applicable Limitations and may be either:
(a) the Supplier’s standard software order form;
(b) a purchase order from the Licensee containing such information as is required by the Supplier; or
© an electronic form submitted by the Licensee to the Supplier containing such information as is required by the Supplier;
“Supplier Materials” means those materials belonging to or under the control of the Supplier;
“Support Services” means the support services set out in clause 6 but excluding any services relating to tax or other non Software advice;
“Territory” means the United Kingdom;
“Year” the period of 12 months from the date of the Agreement and each successive period of 12 months.
1. SOFTWARE SUPPLY AND LICENCE
1.1 The Licensee may order a Licence and Support Services by completing a Software Order Form. Any Software Order Form or other similar document constitutes an offer by the Licensee to purchase a Licence and the Support Services on these conditions. Accordingly, the execution and return of the acknowledgement copy of the Software Order Form by the Supplier, or the Supplier’s commencement or execution of work pursuant to the Software Order Form, shall establish a contract for the Licence and supply of the Support Services on these conditions. The Licensee’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Software Order Form shall not govern the Agreement.
1.2 Upon acceptance of the Software Order Form and in consideration of the payment by the Licensee of the Fee and the Licensee agreeing to abide by the terms of this Agreement, the Supplier:
1.2.1 grants the Licensee a non-exclusive, non-transferable licence to use the Software in the Territory for the Licence Period on the Permitted Hardware; and
1.2.2 shall provide the Licensee with the Documentation and one copy of the Software in object code machine readable form on appropriate media distributed via CD or the Internet suitable for the Permitted Hardware.
1.3 The Licensee shall:
1.3.1 use the Software exclusively for its own internal business purposes (including the Licensee’s employees and those third parties contracted as Associates of the Licensee), shall comply with any Limitations and not permit any third party to use the Software in any way whatsoever;
1.3.2 use the Software only on the Permitted Hardware provided that if the Permitted Hardware is rendered temporarily or permanently unusable the Licensee may install (at its own expense) and use the Software on any other replacement computer system within the Territory with the same or substantially the same specification as the Permitted Hardware and which is operated and controlled by or on behalf of the Licensee;
1.3.3 effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person;
1.3.4 make no copies of the Software except those that are incidental to normal use of the Software and one additional copy of the Software as is necessary for the purpose of back-up and operational security; and
1.3.5 make no alteration to or modification of the whole or any part of the Software nor permit the Software or any part thereof to be combined with or become incorporated in any other programs, nor decompile or disassemble the object code version of the Software nor attempt to do any of such things, save only according to the extent that such cannot be precluded by section 296A of the Copyright, Designs and Patents Act 1988.
1.4 The Licensee acknowledges that use of the Software is restricted by the Limitations. At Supplier’s written request, which shall not be more frequently than annually, the Licensee shall furnish the Supplier with a signed statement: (a) verifying that the Software and Documentation is being used pursuant to the provisions of this Agreement; (b) identifying the number of Benefits Statements actually produced in respect of any given Year; and © any additional information reasonably required by the Supplier to validate lawful use of the Software by the Licensee. The Licensee agrees to grant the Supplier access, upon reasonable prior notice, to the Licensee’s site in order to audit the use of the Software. If such audit establishes that the Licensee has used the Software in excess of the Limitations, the Supplier reserves the right to charge the Licensee for the costs of performing the audit in addition to recovering the charges which would have been due to the Supplier had the Supplier licensed the Licensee for such excessive use.
2. SOFTWARE SUPPORT SERVICES
2.1 In consideration of payment of the Fee by the Licensee the Supplier shall provide the Support Services to the Licensee in relation to the Software for the Licence Period.
2.2 To enable the Supplier to provide the Support Services the Licensee shall:
2.2.1 make available free of charge to the Supplier all information, facilities and services reasonably required by the Supplier for the performance of its obligations under these terms and conditions including without limitation to the generality of the foregoing access to the Licensee’s premises, remote access to the Licensee’s network, computer-runs, print-outs, provision of access to a copy of the Licensee’s data via email or FTP or any other appropriate secure manner as reasonably stipulated by the Supplier, co-operation of the Licensee’s staff, data preparation, office accommodation, typing and photocopying;
2.2.2 notify the Supplier immediately on becoming aware of a fault in the Software or of any proposed material change to the Permitted Hardware or of any other circumstances which might materially affect the operation of the Software;
2.2.3 use the Software in accordance with the Documentation;
2.2.4 keep full security copies of all data processed by the Software in accordance with best computing practice;
2.2.5 ensure that all its staff who use the Software or the Services are properly trained in respect of such use;
2.2.6 use only the current version of the Software in accordance with these terms and conditions;
2.2.5 ensure that all its staff who use the Software or the Services are afforded access to the Documentation; and
2.2.6 promptly apply all updates to the Software as distributed by the Supplier.
2.3 If the Licensee fails to use the Software in accordance with the Documentation, then the Supplier may, after endeavouring to assist the Licensee to remedy the failure, on written notice forthwith suspend the provision of Support Services until such failure has been remedied (if it is capable of remedy) or at its option offer to provide support for which, in default of express agreement to the contrary, it shall be entitled to charge the Licensee in accordance with its then current charging arrangements.
2.4 In the case of repeated or persistent breach of any of the provisions set out in clause 2.2, the Supplier may by written notice immediately terminate its obligations to provide Support Services.
2.5 The Supplier shall not be under any obligation to provide consultancy services in relation to the Software in addition to the Support Services. If the Licensee requests the Supplier to do so then in default of express agreement to the contrary, the Supplier shall be entitled to charge the Licensee the cost of doing so on a time and materials basis at the Supplier’s then current rates. This does not exclude the Supplier from being accountable to remedying failures of the Software as outlined in 5.3.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Intellectual Property Rights in the Software and the Documentation shall remain at all times the property of the Supplier or its licensor and the Licensee shall acquire no rights in any such material except as expressly provided in these terms and conditions.
3.2 The Licensee has no rights to access the Software in source code form or in unlocked coding or with comments. The Supplier will supply the Licensee with detailed Software installation instructions if required. The Supplier shall maintain off-site backup facilities for the purposes of protecting the Software source code.
3.3 The Licensee undertakes that all Supplier Material (including the Software and Documentation) to which the Licensee has access shall not be used by the Licensee or accessed by any of its employees or other person involved on its behalf for any purpose other than for the preparation of Benefit Statements under these terms and conditions, nor shall it be disclosed by the Licensee to any other party.
3.4 The Supplier shall indemnify the Licensee against all actions, claims, demands, costs, charges and expenses arising from or incurred by any allegation of infringement of copyright patent or breach of confidence in respect of the Software or the Documentation, unless such infringement is caused or significantly contributed to by use of the Software or Documentation other than as permitted under these terms and conditions. The Licensee shall give prompt notice to the Supplier of any such allegation and the Supplier shall have the exclusive right to control and direct the investigation, defence and settlement of any claim based on such allegation.
3.5 The Licensee shall give prompt notice to the Supplier if the Licensee becomes aware of any unauthorised use or exploitation of the whole or any part of the Software or the Documentation by any person or body.
3.6 The Licensee grants to the Supplier a non-exclusive licence during the Licence Period to use the Licensee’s name, trade marks and branding images for the Supplier’s marketing purposes including but not limited to use in case studies, advertising and other marketing collateral.
4. FEES AND RENEWAL
4.1 In consideration of the Supplier performing its obligations under these terms and conditions, the Licensee shall pay the Fee to the Supplier in accordance with this clause 4.
4.2 The Fee shall be payable within 30 days of receipt of the Supplier’s invoice by the Licensee. Where provided by the Licensee, each Supplier invoice will reference the Licensee’s purchase order number.
4.3 All prices and fees payable hereunder are exclusive of Value Added Tax or any similar tax. All such taxes are payable by the Licensee and shall be applied in accordance with relevant legislation in force at the tax point date.
4.4 The Supplier shall be entitled to charge the Licensee interest on all overdue payments at a rate of 4 per cent above the base rate of HSBC from time to time, compounded monthly, on the outstanding balance.
4.5 Notwithstanding clause 4.4 the Supplier may in the alternative claim interest at its discretion under the Late Payment of Commercial Debts (Interest) Act 1998.
4.6 The Licensee shall advise the Supplier in writing within 90 days prior to each anniversary of the date of this Agreement the number of Benefit Statements to be produced in the following Year by the Licensee together with such additional information as may be specified by the Supplier from time to time. The Software Order Form shall be deemed to have been amended to include such additional information and the Supplier shall confirm to the Licensee the revised Fees to be paid by the Licensee for the forthcoming Year.
4.7 The Supplier reserves the right to charge an additional Fee for each additional Benefit Statement to be produced using the Software over the limit specified in the Software Licence of the Licensee.
4.8 Without prejudice to the Supplier’s other rights under this Agreement, in the event that any payment is overdue the Supplier may after giving reasonable notice to the Licensee suspend the licence to use the Software provided in clause 1 of this Agreement until such time as payment is received.
4.9 The Supplier shall be entitled to increase the Fees at any time after the first Year of this Agreement by giving the Customer not less than 30 days’ notice. Any such increase shall become effective on the next renewal date following the expiry of such 30 day notice period. Any such increase shall not exceed the percentage increase in the Retail Prices Index plus 3% (“the RPI Index”) (or equivalent index should the RPI Index be no longer available) for the 12 (twelve) months immediately preceding the date of the notice.
5. WARRANTY AND LIABILITY
5.1 The Supplier warrants to the Licensee that:
5.1.1 The medium on which the Software is stored and distributed will be free from defects in design and materials and shall be certified as virus free using up to date, commercially available virus checking software.
5.1.2 The Supplier shall provide the Support Services and any other services provided in relation to the Software, with a reasonable skill and care in accordance with Good Industry Practise; and
5.1.3 The Software will perform in all material respects in accordance with the Documentation and the Help menu in the Software.
5.2 Except as expressly stated in this Agreement, all other warranties and conditions as to the Software and the Support Services, whether express or implied by statute, common law or otherwise are hereby expressly excluded to the fullest extent permitted by law.
5.3 The Licensee acknowledges:
5.3.1 that it is the responsibility of the Licensee to implement its application of the Software together with any other hard and Software selected by the Licensee in combination to meet its requirements;
5.3.2 that the Supplier is not and cannot be aware of the extent of any potential loss or damage to the Licensee resulting from any failure of the Software to conform to the specification or any failure by the Supplier to discharge its obligations under these terms and conditions;
5.3.3 the Software has not been produced to meet the Licensee’s individual specifications; and
5.3.4 that the Software cannot be tested in every possible combination and operating environment, and that it is not possible to produce economically (if at all) computer programs known to be entirely error free or which operate in an uninterrupted manner.
5.4 In the event of breach of the Software warranties above, the Licensee shall notify the Supplier and allow the Supplier reasonable opportunity to correct the Software errors causing the breach of warranty, or replace the defective media (as the case may be). In the event of breach of the Support Services ad other services warranty the Licensee shall notify the Supplier and the Supplier shall reperform the Support Services and/or other services so as to comply with the warranties above, within a mutually agreed timeframe, as part of the Support Services. The correction of any errors, the replacement of any media, or reperformance of Support Services and/or other services shall, if correctly undertaken, be the Licensee’s sole remedy in respect of breach of the relevant warranty.
5.5 Nothing in these terms and conditions shall exclude or restrict the Supplier’s liability for death or personal injury resulting from the negligence of the Supplier or of its employees while acting in the course of their employment or for deceit or fraudulent misrepresentation for which that party is liable at law..
5.6 Notwithstanding anything else in these terms and conditions the Supplier’s liability to the Licensee in contract, tort (including negligence), misrepresentation or otherwise arising out of or in connection with the Software, the Support Services, the provision of any other services provided in relation to the Software, or other performance or non-performance of the Supplier’s obligations under these terms and conditions shall be limited to the aggregate of the Fee paid by the Licensee for the relevant Year under these terms and conditions.
5.7 The Licensee is responsible for arranging its own insurance for any loss over the amount referred to in Clause 5.6.
5.8 Without prejudice to Clause 5.5, in no event shall the Supplier be liable in contract, tort (including negligence or breach of statutory duty or otherwise howsoever for (a) any loss of profit, business, goodwill, contracts, revenues or anticipated savings; or (b) any special, indirect or consequential loss or damage of any nature whatsoever, whatever the cause thereof arising out of or in connection with the provision of the Software, the Support Services or other services under this Agreement.
6. SUPPORT SERVICES
6.1 The Supplier will use reasonable commercial endeavours to provide identification and resolution, obviation and/or mitigation (including provision of a temporary workaround) of bugs or errors reported by the Licensee in the then current version of the Software PROVIDED ALWAYS that such Software is unaltered and used on the Permitted Hardware. The Licensee will access the Support Services via the information provided on the product website or other published materials.
7. TERM AND TERMINATION
7.1 This Agreement shall commence on the date of this Agreement and shall continue for an initial period of one Year, and shall continue thereafter for further periods of one Year unless terminated by either party giving to the other not less than three months’ prior notice in writing expiring prior to the then current Year.
7.2 Either party may (without prejudice to its other rights) terminate the Agreement at any time forthwith by notice in writing to the other if:
7.2.1 a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of the other party’s assets or undertaking or a resolution or petition to wind up the other party is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receive or administrator or to present a winding-up petition or make a winding-up order; or
7.2.2 the other party defaults in due performance or observance of any of its obligations hereunder and (in the case of a remedial breach) fails to remedy the breach within 30 days of receipt of a notice so to do.
7.3 Termination of the Agreement, for any reason, shall be without prejudice to the rights and liabilities of either party which may have accrued on or at any time up to the date of termination.
7.4 Any termination of this Agreement under this Clause 7 shall be without prejudice to any other rights or remedies of either party under this Agreement or at law and all such rights are cumulative. Any such termination shall not affect any accrued rights or liabilities of either party at the date of termination.
7.5 If any Licence to use the Software granted under this Agreement expires or is terminated in accordance with the terms of this Agreement, the Licensee shall forthwith (a) cease using the applicable Software and Documentation and (b) certify in writing to the Supplier that it has destroyed or returned to the Supplier the Software and Documentation in all forms, partial and complete, on all types of media and computer memory, and whether or not modified and merged into other materials.
8. FORCE MAJEURE
8.1 The Supplier shall not be liable to the Licensee for any loss or damage arising due to failure to perform its obligations under these terms and conditions due to any cause beyond the Supplier’s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood drought, lightning or fire, the act or omission of Government, highways authorities, public telecommunications operators or administrative or other competent authority, war, military operations, riot, or difficulty, delay or failure due to any such cause in manufacture, production or supply by third parties of any goods or services required by the Supplier.
9.1 Assignment and Sub-Licensing
The Licensee is not entitled to assign or sub-licence to any third party any of its rights or obligations under this Agreement without the Supplier’s prior written consent, but the Licensee shall not be precluded from using the Software for the benefit of its Associated Companies as permitted under the terms of these terms and conditions. The Supplier shall be entitled to assign or sub-contract its rights and obligations under these terms and conditions to any person, but the Supplier shall give notice of such assignment in writing to the Licensee.
If any part, term or provision of this Agreement not being of a fundamental nature be held illegal or unenforceable the validity or enforceability of the remainder of these terms and conditions shall not be affected.
9.3 Entire Agreement
This Agreement, including the information contained in the latest version of the Software Order Form, supersedes and cancels all previous agreements and working arrangements whether oral or written, express or implied between the parties in respect of or in connection with the matters referred to in these terms and conditions.
9.4 No Waiver
No waiver of a term or condition of these terms and conditions shall be effective unless made in writing and signed by the party against which enforcement of the waiver is sought. The waiver of any breach of any term of any condition of these terms and conditions shall not be construed as a waiver of any subsequent breach of a term or condition of the same or a different nature.
Any notice required to be served by these terms and conditions shall be given in writing and served personally or by prepaid post addressed to either party at its address given above or its last known address. Any notice so posted shall be deemed in the absence of evidence of earlier receipt to have been served three days after such posting and in proving such service it shall be sufficient to prove that the letter containing the notice was properly addressed and posted as a prepaid letter. Any change of address by any party during the term of these terms and conditions shall be notified promptly to the other party in the like manner.
These terms and conditions may be amended only in writing signed by both parties.
9.7.1 Any dispute between the parties arising out of or in connection with this Agreement (other than in relation to the payment of any money) shall in the first instance be referred to the individual of each party responsible for the day to day management of this Agreement for resolution. The parties agree to work together in good faith to reach an agreed settlement of any such dispute.
9.7.2 If within 14 days of the meeting pursuant to Clause 9.7.1 the dispute has not been resolved, the parties agree to submit the dispute to a board director of each party (or such other person as the Licensee sees fit and who shall have authority to settle such dispute on behalf of the Licensee). The parties shall meet within 7 days of the reference to them of any dispute and shall work together in good faith to resolve the dispute.
9.7.3 If within 14 days after a reference under Clause 9.7.2 the dispute has not been resolved, the dispute may be referred, by either party, to an expert to be agreed in writing between the parties or in default of such agreement to such expert as shall be nominated at the request of either party by the President of the British Computer Society at the time of the application in accordance with and subject to the provisions of the Arbitration Act 1950. The costs, charges and expenses incurred in respect of such arbitration including the legal costs of each of the parties will be at the discretion of the arbitrator.
9.8 Governing Law
These terms and conditions shall be governed by and construed and interpreted in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts.