In this agreement the following words shall have the following meanings:
1.1 “Use”, “Used” and “Using” means to load, execute, store, transmit, display, (for the purposes of loading, execution, storage, transmission or display) or otherwise access or utilise the Software for your legitimate business purposes; and
1.2 “Sigma” means Sigma Freight Systems; and
1.3 “us”, “we” and “our” means Sigma Freight Systems Ltd and “you” and “your” mean the person, business or company which paid the licence fee to use the Software; and
(a) the headings are for convenience only and shall not affect its construction or interpretation; and
(b) “including” and “includes” shall be understood to mean “including without limitation” and “includes without limitation” respectively; and
(c) words of a technical nature shall be construed in accordance with the relevant meaning commonly attributed to them in the computer software industry in the U.K.
1.5 “Concurrent users” means the number of users accessing the software at the same time
1.6 “Standard Working Hours” means the hours of 9.00am to 5.30pm UK time Monday through Friday excluding UK Bank Holidays.
2. THE LICENCE
2.1 In consideration of your acceptance and continued observance of the terms of this Agreement, together with payment by you of the applicable licence fees for the Use of the Software, we will grant you a non-assignable, non-exclusive licence to Use the Software and any updates and upgrades to it which we may provide to you in accordance with clause 4.2.
2.2 At the end of the Licence period the Software will alert you of the need for an activation code. We will provide you with an activation code once the Licence has been renewed by you and the appropriate payment received.
2.3 You may install and Use the Software as described below;
2.3.1 The Licence allows you to install the Software on more than one computer and store your data on a shared network server. The maximum number of concurrent users permitted will be shown on your invoice and within the Software.
2.3.2 You may only Use the Software for your own internal business purposes and with your own data only.
2.4 Other than as permitted under this Agreement you shall not and shall not allow anyone else to:
2.4.1 Use, copy (other than for back up purposes only), transfer, sell, sub-licence, lease, mortgage, rent, loan, publish, distribute or otherwise make the Software (or any part of it) available to any other person, whether or not for commercial gain; or
2.4.2 use the Software (or any part of it) for the provision of any computer bureau, remote hosting or ASP services or in any other configuration that permits a third party to use the Software other than under the provisions of a valid licence with us; or
2.4.3 Install the Software more than once on the same single computer or single network computer; or
2.4.4 other than to the extent permitted by law, or with our prior written consent, alter, adapt, merge, modify, translate, reverse engineer, de-compile, disassemble, create derivative works of the whole or any part of the Software (or any part of it); or
2.4.5 remove, change or obscure any of our proprietary notices, labels or marks associated with the Software; or
2.4.6 use or copy (irrespective of the extent of copying) the whole or any part of the Software’s graphic user interface, operating logic or underlying database structure and database fields for incorporation into or the development of any software or other product or technology; or
2.4.7 use or permit others to Use a previous version or copy of the Software or part of it after you have received a replacement or an updated or upgraded version of the Software; or
2.4.8 disclose the Software or Documentation or any part of it to any third party without our prior written consent, provided that this clause 2.4.8 shall not extend to information:
(a) which was rightfully in your possession prior to commencement of this Agreement,
(b) which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this sub-clause), or
(c) which is received from another person without that person breaching our confidentiality.
You shall make sure that every user, employee or other person to whom you have disclosed the Software or Documentation complies with this restriction.
2.5 You acknowledge that you only own the media on which the Software is supplied and that we retain ownership of the intellectual property rights in and to the Software and any copies and amendments made to them, regardless of who made them or their form.
2.6 If your circumstances change to the extent that you wish to Use the Software otherwise than as permitted by this Agreement you should obtain our prior written consent and pay the appropriate licence fee prior to commencing any such Use.
2.7 The Software includes a mechanism which ensures that the Software is Used in accordance with the licence that has been granted, in respect of the number of concurrent users permitted as specified in the relevant invoice. If this mechanism prevents you from using the Software, please contact us.
3. OUR WARRANTIES TO YOU
3.1 During the period of this Agreement we warrant to you that;
3.1.1 where supplied to you other than by remote installation or electronic file transfer, any physical media on which the Software is supplied will be free from defects; and
3.1.2 the Software when used in accordance with any documentation or training supplied by us will substantially provide the functions and facilities and will perform substantially as described in the documentation or in our proposal.
This warranty will not apply if any defect is caused by you or any person controlled by you through accident, abuse, poor storage or handling.
3.2 If we are notified by you during the period of this agreement that the Software does not conform with the warranty provided in clause 3.1 and we are able to replicate and verify such non-conformance, we may issue a fix, patch or update to correct the non-conformance.
3.3 The warranties set out in this clause 3 will not apply if any non-conformance is caused or relates to act prohibited by clause 2.4
3.4 Subject to clause 5.1 but otherwise irrespective of any other term of this Agreement, we do not warrant
(a) that the Software will meet your requirements, or
(b) that its Use or other operation will be uninterrupted or error free, or
(c) make any representation regarding the Use or other operation of the Software or the result of such operation in terms of correctness, accuracy, reliability or otherwise.
4. MAINTENANCE AND SUPPORT OF THE SOFTWARE
4.1 From time to time during the period of this Agreement we may provide you with the following Maintenance and Support services:
4.1.1 error corrections; and
4.1.2 product updates; and
4.1.3 telephone assistance; and
4.1.4 assistance via remote access to your system
4.2 All assistance and support will be provided by us within Standard Working Hours and within the response times set out in the following table:-
|Severity||Failure Description||Response Time|
|1 – System Failed||Multiple users not able to access the system to perform normal work.||2 working hours|
|2 – System Malfunction||The system is still considered operational with some functionality disabled.||4 working hours|
|3 – Operation Impaired||System operation is impaired, slow running or prints not being produced. Core functionality is operational.||24 hours|
|4 – Data Issues||System operates normally but, for example, incorrect data entry by user(s) requires Sigma's assistance to resolve||2-5 Days|
|5 – Cosmetic Issues||Cosmetic error, e.g. spelling mistake, screen layout inconsistency. User enhancement request.||5 Days|
For the purposes of this Agreement, a “response” means Sigma’s acknowledgement of a fault and does not necessarily mean that a resolution will be achieved.
5. DISCLAIMER AND LIMITATION OF LIABILITY
5.1 Nothing in this Agreement shall exclude or limit our liability for
(a) fraud; or
(b) death or personal injury arising out of our negligence; or
(c) any warranty about title or uninterrupted possession implied by statute.
5.2 Subject to clause 5.1, in no event will we be liable for:
5.2.1 lost income, lost profits or lost business, wasted time, anticipated savings, lost goodwill, third party costs and charges, any business interruption or loss of or corruption of data, in each case whether caused directly or indirectly; or
5.2.2 any indirect, consequential, incidental or special damage, however caused and whether arising under contract, tort including negligence, statute or otherwise.
5.3 Subject to clauses 5.1 and 5.2, our maximum aggregate liability shall not exceed the amount of licence fees actually paid by you to Use the Software under this Agreement.
5.4 Our limitation of liability has been calculated to reflect the licence fee you paid to use the Software and also that it is not within our control how and for what purposes you install, Use and/or operate the Software.
6. PROPRIETARY RIGHTS
6.1 We shall indemnify you on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the Software infringes the Intellectual Property Rights of any third party subject to such infringement having been deliberately and consciously entered into on the part of Sigma.
6.2 You shall:
6.2.1 promptly notify us of any claim or threatened claim concerning your use of the Software; and
6.2.2 not independently defend or respond to such claim or threatened claim; and
6.2.3 co-operate with us in the defence of any such claim or threatened claim, subject to payment by us of your third party costs incurred in providing such cooperation.
6.3 The indemnity in clause 6.1 shall not apply to any claim:
6.3.1 which arises from any development, modification, implementation, configuration or integration of the Software other than by us or approved by us in writing; or
6.3.2 which arises as a result of Use of the Software other than as permitted by this Agreement or as described in the Documentation; or
6.3.3 if, in relation to that claim, you do not comply with clause 6.2
6.4 If your use or possession of the Software or any part of the Software in accordance with this Agreement, is held by a court of law to constitute an infringement of a third party's Intellectual Property Rights, then we shall promptly and at our own expense:
procure for you the right to continue using and possessing the Software or the infringing part; or
modify or replace the Software (or part thereof) without detracting from the overall performance of the Software, so as to avoid the infringement.
6.5 The provisions of this clause 6 state your exclusive remedy in connection with any claim or threatened claim in relation to the intellectual property rights of a third party.
7.1 We may terminate this agreement without refund:
7.1.1 if you fail to make any payment due under this Agreement or any other contract with us when due, or you fail to comply with any term of this Agreement, and we have given you a written notice requiring you to rectify the situation, and you have not rectified it within fourteen days; or
7.1.2 immediately if you have not complied with the terms of any finance arrangement you have made with us or a third party for the payment of the licence fee for the Software, or if such arrangement has for any reason ended before you made all the necessary payments.
7.2 Your licence to Use the Software will terminate automatically if you cease to exist, become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative receiver or other receiver appointed, or if any similar circumstances happen to you, in any location.
7.3 Within ten working days of the termination of this Agreement for any reason you shall uninstall the Software and return it to us (including any copies you have made of the Software or any part of it) and provide a certificate in a form provided by us, signed by your duly authorised representative, to confirm compliance with this clause 7.3.
8.1 If you provide us with any personal data which may identify living individuals we will use it to perform our obligations in this Agreement and as required by law, and we may disclose it to our contractors.
8.2 Subject to clause 5.1, we shall not be liable to you for any circumstances arising outside our reasonable control.
8.3 Our failure to enforce any particular term of this Agreement shall not be construed as a waiver of any of our rights under it.
8.4 If any part of this Agreement is held by a court of competent jurisdiction to be unreasonable for any reason whatsoever, the validity of the remainder of the terms will not be affected.
8.5 Subject to clause 5.1, this Agreement constitutes the entire agreement between you and us in relation to the Software and supersedes any other oral or written communications or representations with respect to the Software.
8.6 This Agreement shall be governed by and construed in accordance with the law of England and Wales. The parties submit to the exclusive jurisdiction of the courts of England and Wales.