Spirit Framework License

In these terms and conditions the following words shall have the meanings ascribed to them. All other words shall have the same meanings ascribed to them in the Agreement (as hereinafter defined).

"Agreement" means the agreement between Licensor and Licensee in which these terms and conditions are prescribed.

"Licensor" means Deep Blue Sky Digital Ltd.

"Licensee" means the user of the license rights granted by this Agreement and any permitted sublicensee thereof.

"Software" means the Spirit Application Suite and any subsiduary software owned by the Licensor.

2.1 The Licensor is the sole and exclusive owner of the Software and the Licensor hereby grants and the Licensee hereby accepts a non-exclusive, non-transferable Licence to "Use" (as hereinafter defined) the Software upon the terms and conditions contained herein.

2.2 This Licence entitles the Licensee to:

(a) Use the Software in accordance with this Licence;

(b) receive the Licensor's bulletin reports of "patches" and receive such new updates of the Software incorporating the same;

(c) receive information on upgraded versions of the Software at such cost (if any) as may be notified to the Licensee.

2.3 The Licensee shall not be entitled to sublicence the Use of the Software to a third party.

2.4 For the purposes of this Licence upgraded versions of the Software shall mean enhancements, improvements or modifications of the Software.

2.5 For the purposes of this Licence the term "Administrative Users" shall mean all those persons nominated by the Customer, who are granted access to any Administrative Interface.

3.1 Upon payment of the relevant Licence Fees the Licensee shall be entitled to the Use of the Software.

3.2 For the purpose of this Licence, "Use" shall mean and include:

(a) Utilisation of the Software in pursuance of the Hosting Services to be supplied by the Licensor;

(b) utilising (but not copying) the instructional and/or operational manuals relating to the Software.

3.3 For the purposes of this Licence "concurrent use" means simultaneous use of the Software by the number of Administrative Users of the Licensee.

4.1 Any Licence Fee is payable monthly in advance.

4.2 Licence Fees may be subject to review in accordance with the provisions of the Agreement relating to the review of Charges.

4.3 The Licensee may impose an additional charge upon issue to the Licensee of upgraded versions of the Software Upgrades at additional cost shall be limited to not more than one in every 24 (twenty four) months.

4.4 All charges referred to herein are exclusive of any taxes, duties or such other additional sums including but not limited to value added tax, excise tax, (tax on sales, property or use), import or other duties, and whether levied in respect of this Licence, the Software, its use or otherwise.

5.1 The Licensor offers information on upgrades to any enhancements of the Software at such reasonable cost (if any) as may be notified to the Licensee.

5.2 The Licensor shall charge for other software services requested by the Licensee which are not specifically covered by this Licence.

6.1 The Licensee undertakes not to perform any of the acts referred to in this sub-clause 6.1 except to the extent and only to the extent permitted by the applicable law to the Licensee as a lawful user (that is a party with the express right to use) of the Software and only then for the specified purposes stated in such applicable law or hereunder.

The Licensee undertakes:

(i) not to copy the Software nor otherwise reproduce the same;

(ii) not to translate, adapt, vary or modify the Software;

6.2 In addition the Licensee undertakes:

(i) to supervise and control the Use of the Software in accordance with the terms of this Licence;

(ii) not to provide or make available or permit any other person to make available the Software in whole or in part in any form to any person other than the Licensee's employees without the Licensor's prior written consent;

(iii) within fourteen (14) days after the date of termination or discontinuance of this Licence for whatever reason, to return or destroy (as the Licensor shall instruct) the Software and all upgrades or copies or modifications of the Software received from the Licensor or made in connection with this Licence and all documentation relating thereto and to furnish the Licensor with a certificate, certifying that the same has been done.
 

7.1 The Licensor shall not be liable to the Licensee for any loss or damage whatsoever or howsoever caused whether arising directly or indirectly in connection with this Licence, the Software, its use or otherwise except to the extent to which it is unlawful to exclude such liability under the applicable law.

7.2 Notwithstanding the generality of clause 7.1 above the Licensor expressly excludes liability for any indirect, special, incidental or consequential loss or damage which may arise in respect of the Software, its Use or in respect of equipment or property or for loss of profit, business, revenue, goodwill or anticipated savings,

7.3 In the event that any exclusion contained in this Licence shall be held to be invalid for any reason and the Licensor becomes liable for loss or damage that may be lawfully limited such liability shall be limited to £1,000.

7.4 The Licensor does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of the Licensor, its employees, agents or authorised representatives.

8.1 The Licensee acknowledges that any and all of the copyright, trade marks, trade names an other intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto, are and shall remain the sole property of the Licensor.

9.1 The Licensee acknowledges that software in general is not error free or its use uninterrupted and agrees that the existence of such errors will not constitute a breach of this Licence.

9.2 In the event that the Licensee discovers a material error which substantially affects the Licensee's use of the same and notifies the Licensor within 90 days of the date of this Licence (the "warranty period") the Licensor shall at its sole option either refund the Licence Fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not so comply provided that such non-compliance has not been caused by any modification, variation or addition to the Software not performed by the Licensor or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.

9.3 To the extent permitted by the applicable law, the Licensor disclaims all other warranties with respect to the Software, either express or implied, including but not limited to any implied warranties as to sufficiency, quality or fitness for any particular purpose.

10.1 The Licensor agrees to indemnify and save harmless and defend at its own expense the Licensee from and against any and all claims of infringement of copyright, trade marks or other intellectual property rights affecting the Software provided that (i) the Licensee shall not have done, permitted or suffered to be done anything which may have been or become an infringement of any rights in any copyright trade mark or other intellectual property right as hereinbefore provided and (ii) the Licensee shall have exercised a reasonable standard of care in protecting the same; failing which, the Licensee shall indemnify the Licensor against all actions, proceedings, claims, costs and expenses in respect thereof.

10.2 The Licensee undertakes that the Licensor shall be given prompt notice of any claim specified in Clause 10.1 above that is made against the Licensee and the Licensor shall have the right to defend any such claims and make settlements thereof at its own discretion and the Licensee shall give such assistance as the Licensor shall reasonably require to settle or oppose any such claims.

10.3 In the event that any such infringement occurs or may occur, the Licensor may at its sole option and expense:

(i) procure for the Licensee the right to continue using the Software or infringing part thereof; or

(ii) modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or

(iii) replace the Software or infringing part thereof by other software of similar capability; or

(iv) repay to the Licensee the Licence Fee relating to the whole or the infringing part of the Software less an equitable proportion thereof having regard to the extent of the Licensee's use of the same prior to cessation of use.

11.1 All information, data, drawings, specifications, documentation, software, listings, source or object code which the Licensor may have disclosed or which the Licensor may disclose from time to time to the Licensee relating to the Software is proprietary and confidential. The Licensee hereby agrees that it will use the same solely in accordance with the provisions of this Licence and that it will not at any time during or after the expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without the Licensor's prior written consent.

11.2 Subject only to the specific, limited provisions of Clause 6.1 above, the Licensee further agrees that it will not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor shall the Licensee sell, lease, licence, sub-licence or otherwise deal with the Software or any part thereof or variations, copies, modifications, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor.

11.3 The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.

12.1 The Licensor shall be under no liability to the Licensee in respect of anything which apart from this provision, may constitute a breach of this Licence arising by reason of force majeure, namely circumstances beyond the control of the Licensor which shall include but not be limited to acts of God, perils of sea or air, fire, flood, explosion, sabotage, accident embargo, riot, civil commotion, acts of local government or any quasi-governmental authority; inability to supply the Software, materials, breakdown of equipment and labour disputes of whatever nature.

13.1 In addition to provisions for termination as herein provided, the Licensor may by notice in writing to the Licensee terminate this Licence if any of the following events shall occur:

(i) if the Licensee is in breach of any term, condition or provision of this Licence or required by applicable law and fails to remedy such breach (if capable of remedy) within thirty (30) days of having received written notice of such breach from the Licensor;

(ii) if the Licensee, being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation); shall call a meeting of its creditors, or shall have a receiver of all or any of its undertaking or assets appointed, or shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts.

13.2 Upon termination, the Licensee shall comply with the undertaking specified in clause 6.2 (iii) above and shall pay to the Licensor all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the Software, this Licence or otherwise.

13.3 Termination howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Licence or at law.

14.1 The Licensee shall not assign or transfer all or part of the Software or this Licence without the prior written consent of the Licensor or sublicence the rights granted hereunder except as permitted by this Licence.

15.1 Failure or neglect by the Licensor to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Licensor's rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice the Licensor's rights to take subsequent action.

16.1 The headings of the terms and conditions hereincontained are for the convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Licence.

17.1 In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.

18.1 Any notice to be given by either party to the other shall be sufficiently given if in writing and delivered by hand, or sent by pre-paid letter or facsimile transmission or electronic mail to the address given in the Agreement or such other address as the parties may designate from time to time. Notices shall be deemed to have been received on delivery if delivered by hand or on the third day after posting if sent by pre-paid first class post. Notices sent by facsimile transmission shall be deemed to have been served on the day of transmission if transmitted before 4.00 PM on a working day otherwise on the next working day. Notices sent by electronic mail, where such is an established means of communication between the parties shall be deemed to have been served on the day of transmission if transmitted before 4.00 PM on a working day but otherwise on the next working day.
 

19.1 The parties hereby agree that this Licence constituted on these terms and conditions shall be governed, construed and take effect in all respects in accordance with the laws of England.