LICENCE CONDITIONS FOR ALL SPARK PRODUCTS
1. Definitions
1.1 In these Licence Conditions and where appropriate in the Agreement, the following expressions will have the following meanings, unless inconsistent with the context:
"Add-on" any module or functionality specifically created for the Client by Silver Pride and at the Client's expense
"Agreement" these Licence Conditions together with the Conditions for the Supply of Support (if any) and the Development Partner Propsal (if any)
"Client" Client Details and Registered Address
"Conditions for the Supply of Support" where appropriate, the conditions for the supply of support of even date herewith between the Client and Silver Pride
"Development Partner Proposal" where appropriate, the development partner proposal of even date herewith between the Client and Silver Pride
"Fee" the licence fee payable by the Client to the Silver Pride under clause 2.3
"Intellectual Property Rights" all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world
"Licence Conditions" these conditions (clauses 1 to 9) which are to be read in conjunction with and incorporated within the Agreement
"Silver Pride" Silver Pride Software Limited (Company No. 05170417) whose registrated office is at The Mills, Canal Street, Derby, Derbyshire DE1 2RJ
"Software" Core Content Management System (Core CMS) and all modules and/or components relating to the SPARK Web Management Suite
“Use the Software” to access and use the Software in accordance with the terms of the Agreement
“Use the Software Materials” to Use the Software, to read and possess the Software Documentation in conjunction with the use of the Software and to possess the media upon which the Software Documentation and/or Software (as applicable) is recorded
1.2 Terms and expressions not specifically defined in these Licence Conditions will unless the context otherwise requires have the meaning given to that term or expression in the Development Partner Proposal or, as the case may be, the Conditions for the Supply of Support.
1.3 References in these Licence Conditions to clauses will, unless stated otherwise, refer to clauses of these Licence Conditions.
1.4 In the case of any conflict or ambiguity between any provision of these Licence Conditions and the Development Partner Proposal or commitment to purchase product online and/or the Conditions for the Supply of Support the provisions shall apply in the following order:
1.4.1 the Development Partner Proposal or commitment to purchase product online;
1.4.2 these Licence Conditions; and
1.4.3 the Conditions for the Supply of Support,
so as the Development Partner Proposal / commitment to purchase product online shall prevail over the Licence Conditions and the Conditions for the Supply of Support and the Licence Conditions shall prevail over the Conditions for the Supply of Support.
2. Grant of Single Licence
2.1 In consideration of the Fee paid by the Client to Silver Pride, Silver Pride grants to the Client, subject always to clause 2.3:
2.1.1 a non-exclusive, perpetual, worldwide licence to Use the Software Materials for all purposes connected with the Client's business or the business of the Client's group companies in accordance with any user restrictions set out in the Proposal;
2.1.2 a non-exclusive, perpetual, worldwide licence to use and copy the Software Documentation for all purposes connected with the use of the software pursuant to clause 2.1.1; and
2.1.3 the right, subject to the payment to Silver Pride of such additional fees as shall from time to time apply, to sub-license all or any rights granted under clauses 2.1.1 and 2.1.2 to any third party, for the provision of services on behalf of the Client, subject to the Client complying (and using all reasonable endeavours to procure the compliance of third party sub-licensees) with these Licence Conditions.
2.2 Each license purchased allows the software to be used on a single URL. Additional URL’s required for redirection purposes will be applied at the discretion of Silver Pride. Additional URL’s can only be applied by Silver Pride. Any labour costs associated with applying these will be advised prior to any additional URL’s being applied.
2.3 The Client shall pay to Silver Pride a one off licence fee for the specific product in advance save that Silver Pride reserves the right to vary the annual fee payable on no less than 30 days prior written notice to the Client.
In the event of non payment or late payment Silver Pride reserves the right to:
2.3.1 claim interest under the Late Payment of Commercial Debts (Interst) Act 1998;
2.3.2 terminate the Licences granted pursuant to clause 2.1.
2.4 If the client is hosting their own services, the licence key required to authorise the software will reside on their server.
3. Specific Client Undertakings
3.1 The Client undertakes to supervise and control the use of the Software Materials (insofar as is reasonably practicable) in accordance with the terms of the Agreement.
4. Intellectual Property Rights
4.1 The Client acknowledges that all Intellectual Property Rights in the Software and any modification thereto belong and shall belong to Silver Pride and the Client shall have no rights in or to the Software other than the right to use it in accordance with the terms of these Licence Conditions or the Agreement.
4.2 All Intellectual Property Rights shall in respect of each and every Add-on shall be the property of the Client.
4.3 The Client shall not create or cause to be created any functional module operable within the Software other than with Silver Pride's prior written consent. In the event that the Client breaches this clause 4.3 all Intellectual Property Rights in such functional modules shall belong, and the Client hereby assigns to and agrees to procure (at the Client's expense) the assignment of any such rights, to Silver Pride
5. and Limit of LiabilityWarranty
5.1 The Client acknowledges that access to the Software will not be uninterrupted and that software in general is not error-free. It agrees that the existence of minor errors will not constitute a breach of the Agreement.
5.2 Silver Pride warrants that (subject to the other provisions of the Agreement) the Software will:
5.2.1 be free from material errors which prevent the Client’s use of the Software; and
5.2.2 conform in all material respects with the Software Documentation and any applicable specification agreed in writing between the Client and the Silver Pride (the "Software Warranty").
5.3 The Client accepts responsibility for the selection of the Software to achieve its intended results.
5.4 Silver Pride warrants that the Software Documentation will in all material respects be complete, accurate and up-to-date and of a standard to enable the suitably qualified personnel of the Client to understand and operate the Software.
5.5 Silver Pride warrants and undertakes to the Client that it is entitled to grant the licences in clause 2 and that use and exploitation of the Software Materials in accordance with this Agreement shall not infringe the Intellectual Property Rights or any other rights of any third party.
5.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these Licence Conditions or any collateral contract, whether by statute, common law or otherwise, are hereby excluded.
5.7 Silver Pride will not be liable for a breach of the Software Warranty if the error in the Software has been caused by:
5.7.1 any modification, variation or addition to the Software not performed by Silver Pride;
5.7.2 the use by the Client of other than the latest version of the Software as made available from time to time by Silver Pride;
5.7.3 use of the Software with other software or on equipment with which it is incompatible other than with the prior written approval of Silver Pride.
5.8 Except as expressly stated in clause 5.9:
5.8.1 Silver Pride's liability, whether under these Licence Conditions, the Agreement or any collateral contract, for loss of or damage to the Client's tangible property shall not exceed XXXX;
5.8.2 Silver Pride shall have no liability for any loss or damages which may be sufferred by the Client (or any person claiming under or through the Client), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
a) special damage even though Silver Pride was aware of the circumstances in which such special damage could arise;
b) loss of profits;
c) loss of business opportunity;
d) loss of goodwill;
e) loss of data,
provided that this clause 5.8.2 shall not prevent claims for loss or damage to the Client's tangible property that fall within the terms of clause 5.8.1 or any other claims for direct financial loss that are not excluded by any of categories a) to e) inclusive of this clause 5.8.2;
5.8.3 Silver Pride's total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with these Licence Conditions, the Agreement or any collateral contract, shall in no circumstances exceed a sum equal to [100]% of all fees paid or payable by the Client to Silver Pride in respect of these Licence Conditions or any collateral contract in respect of the year in which such claim arises;
5.8.4 the Client agrees that, in entering into these Licence Conditions, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these Licence Conditions or the Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in these Licence Conditions or the Agreement) Silver Pride shall have no liability otherwsie than pursuant to the express terms of these Licence Conditions or the Agreement.
5.9 The exclusions in clause 5.8 shall apply to the fullest extent permissible at law, but Silver Pride does not exclude liability for death or personal injury caused by its negligence; for fraudulent misrepresentation; for breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2of the Supply of Goods and Services Act 1982; or for any other liability which may not be excluded by law.
6. Use of Software
6.1 You agree that when using the Software, you will not do any of the following:
6.1.1 violate or infringe the rights of Silver Pride, any person, firm or company (including, but not limited to, Intellectual Property Rights, rights of confidentiality or rights of privacy);
6.1.2 use the software in such a way as to condone or encourage terrorism, promote or provide pirated software, or any other form of illegal or damaging activity. Upload or transmit any material which is defamatory, offensive, racially abusive, and sexually explicit or of an obscene or menacing character, or which may cause annoyance, inconvenience or needless anxiety.
7. Termination
7.1 Either party may terminate these Licence Conditions at any time on written notice to the other if the other:
7.1.1 is in material breach of any of the terms of these Licence Conditions or the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
7.1.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding–up or dissolution or is subject to an analgous event.
7.2 On termination for any reason:
7.2.1 all rights granted to the Client under these Licence Conditions shall cease;
7.2.2 the Client shall cease all activities authorised by these Licence Conditions;
7.2.3 the Client shall immediately pay to Silver Pride any sums due to Silver Pride under these Licence Conditions or the Agreement;
7.2.4 the Client shall immediately destroy or return to Silver Pride (at Silver Pride's option) all copies of the Software then in its possession, custody or control.
8. General
8.1 No party shall be liable to the other for any delay or non-performance of its obligations under these Licence Conditions arising from any cause beyond its control. For the avoidance of doubt, nothing in this clause 8.1 shall excuse the Client from any payment obligation.
8.2 No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
8.3 If any provision of these Licence Conditions is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
8.4 Any amendment, waiver or variation of this licence shall not be binding on the parties unless set out in writing, expressed to amend this licence and signed by or on behalf of each of the parties.
8.5 No term of these Licence Conditions is intended to confer a benefit, or to be enforceable by, any person who is not a party to it.
8.6 Any notice required to be given pursuant to these Licence Conditions shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this licence. Notices may be sent by first-class mail or fax, provided that faxes are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed faxes shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in this clause 8.6
8.7 These Licence Conditions and the documents referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
8.8 These Licence Conditions and the Agreement, their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.