Terms and Conditions
(1) “Hornbill”: Hornbill Technologies Limited Company Number (7244938) of Apollo Odyssey Business Park West End Road Ruislip HA4 6QD United Kingdom
(2) “Customer” means the person(s) or company named in the Schedule to this agreement or, if this agreement is received and accepted electronically, the person or company so accepting it
Definitions and Interpretation
1.The capitalised words used in this licence are defined in the Schedule
2. The headings used in this licence are inserted for convenience and do not affect its interpretation
3. Words in the singular include the plural words importing any gender include every gender and words referring to any party shall include its successors or assigns permitted by this licence
4. Hornbill grants to the Customer a non exclusive licence on the terms set out below to Use the Licensed Programs on the Equipment commencing on the date of Installation until this licence is terminated in accordance with clause 18
5. The Customer shall not:
5.1 (except as provided in clauses 9 and 21 below) make backup copies of the Licensed Programs;
5.2 reverse compile, copy adapt or modify the whole or any part of the Licensed Programs, except solely for the purposes expressly permitted by statute;
5.3 assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Programs or use the Licensed Programs on behalf of any other person, or make any part of them available to any other person save as agreed in writing in its absolute discretion by Hornbill;
5.4 remove or alter any copyright or other proprietary notice on the Licensed Programs; or
5.5 permit the Licensed Programs to be used by a greater number of users than specified on the front sheet of this licence
6. The Customer shall:
6.1 reproduce on any copy (whether in machine readable or human readable form) of the Licensed Program Hornbillâ€™s copyright and trade mark notices;
6.2 maintain an up-to-date written record of the number of copies of the Licensed Programs in the possession of the Customer and their users and location;
6.3 notify Hornbill immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Licensed Programs by any other party; and
6.4 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of Hornbill and/or its suppliers in the Licensed Programs
7. The Customer acknowledges that, in the event of its breach of any of the provisions of clauses 5 or 6 Hornbill will not have an adequate remedy in damages, and the Customer consents (without limiting the right of Hornbill to any other remedy) to the entry by any court of competent jurisdiction, of an injunction against any threatened or continuing breach.
8. Upon written request of Hornbill, at any reasonable time and from time to time, the Customer shall certify to Hornbill in writing the equipment on which the Licensed Programs (or any portion thereof) are installed and/or accessible, the maximum number of users of the Licensed Programs, and either:
8.1 that the Customer is in compliance with the terms of this licence, or
8.2 that the Customer is not in compliance with the terms of this licence and identifying the non-compliance. Hornbill reserves the right upon reasonable notice to audit the number of users at any time during regular business hours
9. The Customer shall be entitled to make such number of back-up copies of each of the Licensed Programs and for storage in a secure disaster recovery facility as the Customer shall reasonably require. Any such copy shall in all respects be subject to the terms and conditions of this licence shall be deemed to form part of the Licensed Programs and one copy only shall be Used and that only where the original copy of the Licensed Program shall have been destroyed or become inoperable by reason of accident or disaster.
Warranties and Undertakings and Confidentiality
10. Hornbill warrants and undertakes to the Customer:
10.1 that it has the requisite powers and authority to enter into this licence and that this licence has been validly executed and will constitute a valid licence binding on it in accordance with its terms;
10.2 that its title to and property in the Licensed Programs are free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this licence;
11. The Customer:-
11.1 warrants and undertakes to Hornbill:
11.1.1 that it has the requisite powers and authority to enter into this licence and that this licence has been validly executed and it will constitute a valid licence binding on it in accordance with its terms;
11.1.2 that the Customer has selected the Licensed Programs after duly and carefully considering their suitability for the Customerâ€™s business;
11.1.3 that the Customer will observe and perform all its obligations under this licence;
11.2.1 that Hornbill does not warrant that the Licensed Programs will meet the Customerâ€™s data processing requirements and that Hornbill has no responsibility for any installation modifications (whether or not with Hornbillâ€™s consent) and implementation of the Licensed Programs carried out by the Customer or any other party
11.2.2 that the running of the Licensed Programs may not be uninterrupted or error free
12. Each of Hornbill and the Customer hereby undertakes to the other to:-
12.1 keep confidential all information (written or oral) concerning this licence and the business and affairs of the other that it shall have obtained or received as a result of the entering into or performance of this licence (â€œInformationâ€);
12.2 not without the otherâ€™s written consent to disclose the Information in whole of in part to any other person save those of its employees who have a need to know the same; and
12.3 to use the Information solely in connection with the implementation of this licence and not otherwise for its own benefit or for the benefit of any third party
13. The provisions of clause 12 shall not apply to the whole or any part of the Information to the extent that:-
13.1 it is trivial or obvious;
13.2 it can be demonstrated by the other party by written evidence to have been lawfully in that otherâ€™s possession prior to the date of this licence; or
13.3 it is other than as a result of a breach of this clause available to the public generally without charge
13.4 to the extent that it is required by law to be disclosed
14. For the purposes of the Customerâ€™s undertaking in clause 12 the Information shall be deemed to include all information (written or oral) concerning the Licensed Programs and any analysis or implementation document produced in connection with the supply of the Licensed Programs.
15. Each of Hornbill and the Customer hereby undertakes to the other to make all relevant employees agents and sub-contractors aware of the confidentiality of the Information and the provisions of clauses 12 to 14.
16. Hornbill retains any and all proprietary interests and intellectual property rights whatsoever in all parts of the world whether by way of copyright or otherwise in relation to:
16.1 the Licensed Programs and all related software configuration and methodology and all documentation belonging to or produced by Hornbill; and
16.2 its systems trade secrets and registered and unregistered trademarks used in connection with the Licensed Programs and any ancillary material and all such rights shall remain the exclusive property of Hornbill or (if applicable) its suppliers subject only to the rights of the Customer under the Licence and Hornbill reserves the right to use for the purposes of its business all programming tools methodologies skills and techniques acquired used or developed in the course of supplying the Licensed Programs
17. For the avoidance of doubt Hornbill expressly agrees that all rights in the data and information belonging to the Customer and entered on or used in conjunction with the Licensed Programs by the Customer shall remain the property of the Customer
18. Hornbill may terminate this licence forthwith by notice in writing to the Customer if the Customer is in material breach of this licence and shall fail to remedy such breach (if capable of remedy) within 30 days of receipt of notification thereof in writing from Hornbill.
19. In the event of termination of this licence by Hornbill by reason of any act or omission of the Customer which is in breach of any of its terms the Customer shall cease to be in lawful possession of the Licensed Programs and shall forthwith return all copies to Hornbill and delete them from any systems on which they operate or are held and delete and return to Hornbill all copies of Information of Hornbill which is or has been in the possession of the Customer.
20. Any termination of this licence howsoever caused shall be without prejudice to any other rights or remedies a party may be entitled to shall not affect any accrued rights or liabilities of either party and shall not affect the continuance of any provisions of this licence which expressly or by implication come in to or continue in force after termination
21. Notwithstanding any termination provisions in this licence the Customer shall be entitled for a period of 10 years from the date of termination to keep one copy of the Licensed Programs free of charge in a fire-proof room for archival purposes. If the Customer uses any of the Licensed Programs other than for archival purposes it shall forthwith become liable to pay to Hornbill its then current charges for the use of the Licensed Programs or any equivalent software then licensed in substitution for the Licensed Programs.
Limitation of Liability
22. The following provisions set out Hornbillâ€™s entire liability (including any liability for the acts and omissions of its employees agents and contractors) to the Customer its employees agents and contractors in respect of any breach of Hornbillâ€™s obligations arising under or in relation to this licence and whether in contract or tort and the parties declare that this provision takes account of all circumstances which the parties consider relevant and have been agreed between them as a fair and reasonable distribution of the relevant risks and liabilities.
23. Hornbillâ€™s liability to the Customer:
23.1 for death or personal injury resulting from its own or that of its employeesâ€™ agentsâ€™ or sub-contractorsâ€™ negligence;
23.2 under clause 10 shall not be limited.
24. Any act or omission on the part of Hornbill falling within clause 22 is referred to as an â€œEvent of Default.
25. Subject to the provisions of clause 23 Hornbillâ€™s aggregate liability in respect of all Events of Default shall be limited to damages of an amount equal to the sums received by Hornbill in respect of this licence
26. Save in the case of any liability within clause 23.1 Hornbill shall not in any event be liable to the Customer for damages for loss of profits or goodwill increased operating costs or expenses loss of opportunity loss of information data or stored material or costs of replacing the same any loss or damage suffered by the Customer as a result of a claim brought by a third party or any type of special indirect or consequential loss even if any loss referred to in this clause was reasonably foreseeable or a party had been advised of the possibility of the other party incurring it.
27. If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this licence.
28. Except in the case of an Event of Default of the kind referred to in clause 23.1 Hornbill shall not have any liability to the Customer or any other person in respect of any event of default unless the party claiming has notified Hornbill in writing within 3 months of the party claiming becoming aware of the circumstances giving rise to the Event of Default.
29. If requested by the Customer Hornbill shall permit the Customer upon the Customer entering into such licences as shall be required by NCC and paying its fees to become part of Hornbillâ€™s multi user escrow arrangements with NCC.
30. This licence contains the entire agreement between Hornbill and the Customer and shall take effect notwithstanding any terms sought to be imposed by the Customer or any course of dealing whether before or after the date of this licence and may only be varied in writing signed by the Customer and a director of Hornbill.
31. The Customer acknowledges and warrants to Hornbill that it has not been induced to enter into this licence by any statements representations warranties or understandings save as set out expressly in this licence provided that this clause shall not apply to any statement made fraudulently by Hornbill or any of its employees and relied on by the Customer.
32. Any notice to be given by one part to the other shall be validly given if:
32.1 posted by pre-paid recorded delivery first class post (air mail if international) addressed to the party to be served at the address set out at the head of this licence or if different the address previously notified in writing by the part to served to the other and shall be deemed served on the third working day after posting (or the sixth working day if by international air mail) (unless proved by the receiving party that it was not actually delivered);
32.2 sent to the facsimile number of the party to be served and the sender has his fax machineâ€™s self generated journal entry of transmission and shall be deemed served on the next working day after sending;
32.3 personally delivered to the address of the party to be served referred to in clause 32.1 and shall be deemed served when so delivered
33. After the expiration or termination however caused of this licence, all provisions regarding indemnification, warranties, liability and limits thereon confidentiality and protection of proprietary rights and trade secrets shall survive indefinitely.
34. The Customer shall not be entitled to assign or otherwise transfer this licence nor any of its rights or obligations hereunder, nor sub-license the use (in whole or in part) of the Licensed Programs without the prior written consent of Hornbill save that the Customer shall be entitled to assign this licence to a company which is under the entire ownership and control of the Customer provided that Hornbill shall be notified of the identity and address of the assignee in writing within 28 days of such assignment and that such assignment is on terms that and the Customer shall procure that in the event that such assignee shall cease to be a company under the entire ownership and control of the Customer the Licence shall forthwith be reassigned to the Customer.
35. The waiver by either party of a breach or default in any of the provisions of this licence by the other party shall only be effective if made as a specific waiver in writing and shall not be construed as a waiver of any succeeding breach of the same or other provisions. Save as otherwise provided no delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder shall operate as a waiver of any breach of default by the other party.
36 If any provision of this licence shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this licence and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
37. The parties do not intend that any rights should be conferred on third parties by virtue of this licence and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this licence.
38. This licence shall be interpreted and governed by the laws of England and the parties submit to the exclusive jurisdiction of the courts of England Provided that this clause shall not prevent Hornbill from taking proceedings against the Customer in any other jurisdiction.
The following words shall have the following meanings in this licence:
“Installation” the first installation of the Licensed Programs on the Equipment
“Equipment” the Customerâ€™s computer equipment at the Site having the characterisation and capabilities specified by Hornbill for the operation of the Licensed Programs;
“Licensed Programs” the computer programs or suite of programs in object code form identified in on the front sheet of this licence including all know how and technology embodied in them and any upgrades new versions modifications and additions supplied to the Customer;
“Site” the Customerâ€™s premises specified on the front sheet of this licence or agreed between the parties in writing
“Use” the copying or transmission of the Licensed Programs into the Equipment and the processing of the instructions contained in the Licensed Programs.