1.1 In these terms and conditions (“TERMS”), unless the context otherwise requires:
“COMPANY” means Landmark Systems Limited.
“CONFIRMATION” means the Company’s confirmation letter or email to the Purchaser.
“CONTRACT” means the contract between the Company and Purchaser that is subject to these Terms.
“EFFECTIVE DATE” means the date a Contract comes into force in accordance with clause 4.2.
“EQUIPMENT” means the items of hardware identified in the Confirmation.
“FEES” means the Purchase Price, Maintenance Fee and Licence Fee.
“IN-HOUSE SOFTWARE” means the software, developed by the Company, identified in the Confirmation, together with any relevant In-House Documentation.
“IN-HOUSE DOCUMENTATION” means any manual, instruction manual, user guide and other item of documentation developed by the Company and supplied to the Purchaser.
“INSOLVENCY EVENT” means, in respect of a party: having a bankruptcy order made against it; making an arrangement or composition with its creditors; otherwise taking the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; convening a meeting of creditors (whether formal or informal); entering into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation; having a receiver and/or manager, administrator or administrative receiver appointed over all or any part of its assets or undertakings; having a resolution passed or a petition presented to any court for its winding up or for the granting of an administration order in respect of it; or proposing any of the above.
“LICENCE” means the licence granted by the Company in accordance with clause 5.
“LICENCE FEE” means the fee for the Licence set out in the Confirmation.
“MAINTENANCE FEE” means the fee for Maintenance Support set out in the Confirmation.
“MAINTENANCE SUPPORT” means the provision of consultancy, training and delivery of technical support in accordance with clause 9.
“PURCHASE PRICE” means the purchase price for the Equipment set out in the Confirmation.
“PURPOSE” means the purpose for which the Purchaser may install and use the Software set out in the Confirmation or order form.
“PURCHASER” means the individual, business, partnership (including, without limitation, LLP’s) or limited company specified in the Confirmation or order form.
“REPRESENTATION” has the meaning set out in clause 14.4.
“QUOTATION” means any quotation, whether verbal or in writing, requested by the Purchaser and supplied by the Company.
“SOFTWARE” means the In-House Software and the Third Party Software.
“THIRD PARTY SOFTWARE means the third party software identified in the Confirmation.
All contracts for the supply of Equipment, Software and/ or Maintenance Support, whether they are in force on the Effective Date or entered into in the future, shall be subject to these Terms, which supersede any earlier sets of terms and conditions issued by the Company. Any term or condition contained in any of the Purchaser’s contractual documentation delivered to the Company that would conflict with these Terms, or in any way qualify or nullify these Terms, shall not be applicable to the Company unless it has been expressly agreed to in writing by a duly authorised Company representative.
3. Acceptance and Cancellation
3.1 The Company reserves the right to withdraw a Quotation at any time without giving notice and without providing a reason.
3.2 Unless withdrawn in accordance with clause 3.1, all Quotations are open to the Purchaser for acceptance for 30 days only, commencing on the date stipulated on the Quotation. All Quotations are subject to contract.
3.3 The Company reserves the right to cancel any uncompleted order, or suspend performance, of any Contract if the Purchaser fails to comply with any of its obligations under the Contact, or if the Company reasonably believes that in all the circumstances the Purchaser may do so.
4. Purchase of Equipment, Software and Maintenance Support
4.1 The Company shall sell and supply the Equipment, Software and Maintenance Support set out in the Confirmation. Third Party Software is sold subject to the relevant third party’s terms, which will be made available on request.
4.2 The Contract for such supply shall come into force, and become binding, once the Purchaser has signed, or acknowledged receipt of, an order form (incorporating these Terms and the Confirmation) and returned the same to the Company or otherwise accepted the Company’s offer and these Terms in any other manner permitted by the Company.
5. The Licence
5.1 The Company hereby grants the Purchaser a non-exclusive, non-transferable licence, for the term of the Contract, to install and use the object code of the In-House Software for the Purpose only in the UK on the following terms: (i) the Purchaser may only use the In-House Software for its internal business purposes; (ii) unless agreed otherwise, the Purchaser may only install and use the In-house Software in connection with a single set of data; (iii) if the Purpose is for a single-user licence, then the Purchaser may only install and use the In-House Software on a single CPU; (iv) if the Purpose is for a multi-user licence, then the number of licensed users set out in the Confirmation may use the In-House Software provided that they do so on a single network that is under the Purchaser’s control; (v) the Purchaser may make one copy of the In-House Software for back-up purposes; (vi) on request, the Purchaser shall deliver immediately to the Company a certificate, signed by (where the Purchaser is an individual) the Purchaser or (otherwise) by any director or other officer of the Purchaser, confirming that the Purchaser is in full compliance with the Contract and specifying the number of users of the In-House Software at that time; and (vii) the Purchaser may receive and use any free supplementary software code or update of the version of the In-House Software licensed to the Purchaser, incorporating "patches" and corrections of errors as may be issued from time to time, which the Purchaser shall install immediately. However, the Purchaser is not entitled to receive any new version of the In-House Software that may from time to time be released.
5.2 The Purchaser shall: (i) not copy the In-House Software, except where such copying is incidental to its normal use or where it is necessary for the purpose of back-up; (ii) not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the In-House Software; (iii) not permit all or part of the In-House Software to be combined with, or become incorporated in, any other program; (iv) neither disassemble, de-compile, reverse engineer or create derivative works based on all or any part of the In-House Software nor attempt to do so, except to the extent permitted by law; (v) not provide, or otherwise make available, all or part of the In-House Software to any third party in any form; and (vi) if provided with specific Equipment, only use the In-House Software on that Equipment and not transfer it, either permanently or temporarily, to any other equipment without the Company’s prior written consent.
5.3 Where any In-House Software has been provided to the Purchaser on a rental basis, then the Purchaser may only use the In-House Software for the rental period set out in the Confirmation or order form, unless the Purchaser exercises any purchase option in accordance with the terms for its exercise that are set out in any order form or the Confirmation (in which case the Purchaser may use it for the remainder of the Contract).
5.4 The Purchaser may not sub-licence the use (in whole or in part) of the Software without the prior written consent of the Company.
6.1 The Fees shall be as set out in the Confirmation. The Purchase Price of any Equipment and any initial Licence Fee shall become due and payable on the Effective Date. All other fees shall be due and payable in full 30 days from the date of the Company’s invoice. The Fees stated are exclusive of value added tax and any other applicable tax, which shall be payable in addition to the Fees.
6.2 The Company may vary any Fee (including, without limitation, annual Maintenance Fees) from time to time.
6.3 Time for payment shall be of the essence and no payment shall be deemed to have been received by the Company until it has received cleared funds.
6.4 The Purchaser shall make all payments due under the Confirmation without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.5 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998, as amended from time to time.
7. Title and Risk
7.1 Title in the Equipment shall not pass to the Purchaser until the Company has received in full (in cleared funds) all sums due to it in respect of the Equipment and all other sums which are or which become due to Company from the Purchaser on any account or order, together with any interest thereon. At no time will title in the Software pass to Purchaser.
7.2 Until ownership and title of the Equipment passes to the Purchaser, the Purchaser must: (i) hold the Equipment on a fiduciary basis as the Company’s bailee; (ii) store the Equipment separately from all other goods or equipment so that it is easily identifiable as the Company’s property; (iii) maintain the Equipment in satisfactory condition and insured on the Company’s behalf for its full price against all risks; and (iv) hold the insurance proceeds on trust for the Company.
7.3 The Purchaser’s right to possession of the Equipment under clause 7.2 shall terminate immediately if it suffers an Insolvency Event or the Company believes that it is about to do so; it ceases, or threatens to cease, trading; or it encumbers or in any way charges any of the Equipment. The Purchaser grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is, or may be, stored in order to inspect or recover it.
7.4 Risk in any Equipment or Software shall pass to the Purchaser at the time such Equipment or Software leaves the Company’s premises.
8. Property and Confidentiality
8.1 The In-House Software contains confidential information about the Company, and all copyright, trade marks and other intellectual property rights (whether registered or not registered) in the In-House Software are (and shall remain) the exclusive property of the Company.
8.2 The Purchaser shall not remove, alter or destroy any copyright or other proprietary notice on any of the Software. The Purchaser shall reproduce on any copy (whether in machine readable or human readable form) of the Software the Company’s copyright and trade mark notices or any other proprietary notice, and without prejudice to the foregoing shall take all such other steps (as shall from time to time be necessary) to protect the confidential information and intellectual property rights of the Company in the In-House Software and the proprietor in the Third Party Software, and shall fully indemnify the Company accordingly.
9. Training and Maintenance Support
9.1 The Company shall provide the training services as detailed in the Confirmation. The Company shall provide, in respect of the Equipment and the In-House Software, such technical advice by telephone, email, fax or post on the use of and using the same during normal working hours (9.00 – 5.30 pm Monday to Friday, excluding public holidays).
9.2 Maintenance Support shall not include the diagnosis and rectification of any fault resulting from: (i) the Purchaser’s negligence; (ii) the improper use, operation or neglect of the In-House Software or the Equipment; (iii) any repair adjustment alteration or modification of the same by any person other than the Company; (iv) any use of the In-House Software for a purpose for which it was not designed; or (v) any failure by the Purchaser to incorporate "patches" and corrections of errors issued by the Company or to implement recommendations in respect of or solutions to faults previously advised by the Company.
10. Equipment/ Software Warranty
Where the Equipment or Software are supplied by a third party the Company will use its reasonable endeavours to assign to the Purchaser all of its rights, if any, in respect of any guarantee or warranty given by the supplier to the Company. No other warranty, express or implied, will be offered by the Company. In particular, the Supplier does not warrant that the use of the Software will be uninterrupted or error-free. Any consumer’s statutory rights are not affected.
11. Limitation of Liability
11.1 Subject to clause 11.2:
11.1.1 the Company shall not in any circumstances be liable to the Purchaser, whether in contract, tort (including, without limitation, negligence) or otherwise, under or in connection with the Contract for any: (i) indirect or consequential loss or damage; (ii) loss of profits; (iii) loss of anticipated savings; (iv) loss of business opportunity; (v) loss of goodwill; or (vi) loss or corruption of data; and
11.1.2 the Company’s total liability, whether in contract, tort (including, without limitation, negligence) or otherwise and whether in connection with the Contract or any collateral contract, shall in no circumstances exceed a sum equal to the total Fees paid under the Contract in the immediately preceding 12 months.
11.2 The Company does not exclude liability for: (i) death or personal injury caused by the negligence of the Company; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
12. Force Majeure
The Company shall not have any liability to the Purchaser if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by any act, event, omission or accident beyond its reasonable control.
13.1 The Contact (including the Licence) may be terminated: (i)immediately by the Company if the Purchaser commits any material breach of any term of the Contract and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request to do so from the Company; (ii) in the case of rental, at the end of any rental period, unless the Purchaser has exercised any purchase option set out in the relevant Confirmation or order; (iii) immediately by either party if the other party suffers an Insolvency Event; or (iv) by either party giving the other one month’s notice, but (in such circumstances) no refund of the Maintenance Fee shall be payable by the Company.
14.1 The Purchaser may not assign, in whole or in part, to any person any of its rights or obligations under these Terms without obtaining the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.
14.2 Waiver by the Company of a right or default under these Terms shall not be deemed a waiver of any subsequent right or default whether of a similar nature or otherwise.
14.3 Nothing in these Terms is intended to confer on any third party any benefit or any right to enforce these Terms.
14.4 These Terms, the order form and the Confirmation contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements between the parties relating to that subject matter. Neither party has relied on any statement, representation, assurance or warranty (whether made negligently or innocently) of any person (REPRESENTATION) when entering into the Contract. The only rights and remedies available to a party arising out of or in connection with a Representation shall be for breach of the Contract. Nothing in this clause 14.4 shall limit or exclude any liability for fraud.
14.5 The Contract shall be governed by and construed in accordance with English law and the parties agree to submit themselves to the non-exclusive jurisdiction of the English Courts.