General Chest Licence for Software

Chest licence terms and conditions for software pre June 2011

This set of general licence conditions applies to Eduserv's Software Chest Agreements negotiated prior to June 2011 unless special terms and conditions are expressly referenced in the Agreement Overview.

Always check specific details for each agreement.

  1. Authority
  2. Grant of Rights
  3. Use
  4. Extent of Permitted Reproduction
  5. Payment Terms
  6. Proprietary Rights
  7. Confidentiality
  8. Inspection Rights
  9. Warranty
  10. Limitations of Liability
  11. Copyright Indemnity
  12. Publicity
  13. Liquidation
  14. Termination
  15. Post Termination
  16. Force Majeure
  17. Assignment
  18. Notices
  19. Severability
  20. Waiver
  21. Licensor's Personnel
  22. Arbitration
  23. Law
  24. Entire Agreement

1. Authority

1.1 The Licensor warrants that it has the authority to grant the Licence granted hereunder.

2. Grant of Rights

2.1 The Licensor hereby grants to the Licensee a non-exclusive and non-transferable Licence to use Product and Licensed Materials in the United Kingdom and those countries to which an agreement pertains on the terms and conditions stated herein and for the period specified in the Schedule from the date of delivery.

3, Use

3.1 The control and distribution of Product and Licensed Materials is to be the responsibility of the nominated systems administrators of the licensed site for the licensee.

3.2 Product may be used by any employee, student or other persons authorised by the Licensee for the purposes of the normal business of the Licensee's organisation, whether or not they are located on the Licensee's premises. (Please see 2.1 above.) Such use of Product includes the following:

3.2.1 Teaching;

3.2.2 Research;

3.2.3 Personal educational development;

3.2.4 Administration and management of the business of the Licensee's organisation;

3.2.5 Development work associated with any of the above.

General Exclusions:

3.2.6 Paid for consultancy or services leading to commercial exploitation of Product;

3.2.7 Work of significant benefit to the employer of students on industrial placement or part-time courses.

3.2.8 In 3.2.6 and 3.2.7 above, the Licensor may allow such use in return for acknowledgement of use of Product and/or for an agreed fee.

3.3 No persons shall be excluded from use of Product for reasons of nationality or citizenship.

3.4 The Licensee will provide named contacts. All technical enquiries, support and information requests will be made through the named contacts. The named contacts are as shown in Schedule 4 Part 1.

4. Extent of Permitted Reproduction

4.1 The Licensee may make as many copies of Product and Licensed Materials as are required. Such copies shall remain the property of the Licensor. The Licensee shall maintain a written record of each reproduction of Product and the Licensee shall produce such a record on request.

4.2 The Licensee shall not permit others to make any copies of Product or Licensed Materials.

5. Payment Terms

5.1 The Licensee shall pay to Eduserv the charges shown in Schedule 4 Part 1 or otherwise due under this Licence.

6. Proprietary Rights

6.1 The Licensee shall not acquire any title, copyright or other proprietary rights in Product or Licensed Materials.

6.2 The Licensee agrees not to remove or in any way modify any proprietary marking including any trade mark or copyright notices on or in Product or its carrier medium or on any Licensed Materials. The Licensee shall incorporate such proprietary markings in any derivative material.

6.3 The Licensee shall not make any modifications, additions or enhancements to Product without the Licensor's prior written consent.

7. Confidentiality

7.1 The Licensee hereby acknowledges that Product and Licensed Materials contain confidential information of the Licensor or of third parties. The Licensee undertakes to keep confidential Product and Licensed Materials and shall not divulge the same to any third parties without the prior written consent of the Licensor.

7.2 The Licensor and Licensee shall keep confidential the contents of this Licence and all information of the other party designated as confidential and obtained under or in connection with the Licence and shall not divulge the same to any third party without the prior written consent of the disclosing party.

7.3 The Licensor and Licensee may divulge confidential information of the other party only to those employees, agents or subcontractors bound under equivalent conditions of confidence who are directly involved in the use of Product, and shall ensure that such persons are aware of and undertake to comply with these obligations of confidentiality.

7.4 The provisions of this Clause shall not apply to any information which:

7.4.1 is or becomes public knowledge other than by breach of this Clause;

7.4.2 is in the possession of the receiving party without restriction before the date of receipt from the disclosing party;

7.4.3 is obtained from a third party who is lawfully authorised to disclose the same.

7.5 The obligations of both parties as to disclosure and confidentiality shall continue in force notwithstanding the termination of this Licence for any reason whatsoever.

8. Inspection Rights

8.1 The Licensor may upon reasonable notice send a representative to the Site to verify compliance with this Licence.

9. Warranty

9.1 Unless otherwise provided in the Special Conditions, the Licensor warrants that Product used in accordance with the Licensor's instructions will perform substantially in accordance with the operating manual supplied as part of Licensed Materials. The Licensor does not warrant that the functions or facilities of Product will meet the Licensee's requirements or that operation of Product will be uninterrupted or error free.

9.2 The Licensee acknowledges that Product and Licensed Materials have not been prepared to meet the Licensee's individual requirements and that it is the Licensee's responsibility to ensure that the facilities and functions described in Licensed Materials meet the Licensee's requirements.

9.3 The Licensor shall not be liable for any failure of Product to provide any facility or function not described in Licensed Materials or for any failure of Product if alterations to Product or Platform(s) have been made by any person other than the Licensor unless such alterations have been made with the Licensor's prior written consent.

9.4 The Licensee shall notify the Licensor in writing and provide documented examples of any defects or errors in Product. The Licensor undertakes to correct or replace at the Licensor's option and expense within a reasonable period of time Product which is demonstrated to fail to perform in accordance with the warranty given in Sub-clause 9.1.

9.5 The Licensee's sole and exclusive remedy under the warranty given in this Clause shall be limited to the correction or replacement of Product in whole or in part.

10. Limitations of Liability

10.1 The Licensor shall indemnify the Licensee in respect of any liability for death or personal injury to any person or loss of or damage to the Licensee's tangible property caused by the Licensor's negligence, provided that the Licensor's liability in respect of loss or damage to property shall not exceed the amount of £100,000 (one hundred thousand pounds) (or such greater sum as may be agreed between the Licensor and Licensee) in respect of any one incident or series of incidents attributable to the same cause.

10.2 The Licensor's liability under Clause 9 shall be in lieu of any condition or warranty of any kind whatsoever, express or implied, statutory or otherwise, including as to the quality or fitness for any particular purpose, of Product or Licensed Materials.

10.3 The Licensor shall not in any circumstances be liable whether in contract, tort or otherwise for any consequential or indirect loss or damage howsoever arising and of whatsoever nature suffered or incurred by the Licensee including (without limitation) loss of profits, loss of contracts, loss of data, loss of operation time or loss of use of any equipment or process suffered indirectly by the Licensee and loss of anticipated savings.

10.4 Save as provided in Sub-clause 10.1 (and excluding negligence resulting in death or injury for which no limit applies) the liability of the Licensor to the Licensee for direct loss or damage whether in contract, tort or otherwise arising out of or in connection with its performance or its total or partial failure to perform in accordance with the terms of this Licence, shall in respect of any one incident or series of incidents attributable to the same cause be limited to and shall not in any circumstances exceed the sum of £25,000 (twenty five thousand pounds) or the charges shown in Schedule 4, Schedule of Particulars, whichever is the greater.

10.5 Save as provided in Clause 9 and Sub-clause 10.1 and 10.4, the Licensor shall not be liable to the Licensee either in tort, contract or otherwise whatsoever for any loss, damage, injury or expense howsoever arising out of or in connection with the supply or use of Product or the manner of performance of this Licence.

10.6 The Licensee will indemnify the Licensor in respect of any claim for loss, damage or injury of any person or property occasioned by the act, neglect or default of the Licensee except, and insofar as the Licensor is liable as aforesaid.

11. Copyright Indemnity

11.1 The Licensor shall indemnify the Licensee against any damages, costs, claims or expenditure incurred by the Licensee as a result of any infringement or alleged infringement of copyright or any intellectual property rights of a third party when Product is used by the Licensee for the purposes licensed hereunder provided that:

11.1.1 the Licensor shall be promptly notified by the Licensee upon the Licensee becoming aware of any such alleged infringement and, at its own expense, the Licensor shall conduct all negotiations for settlement of such allegations and any litigation that may arise therefrom;

11.1.2 the Licensee shall, at the request of the Licensor, give all reasonable assistance for the purposes of courtesy and defending such claims or demand or action and shall be indemnified against all costs and expenses in so doing;

11.1.3 the Licensee shall not make any admissions which may be prejudicial to the defence of such claim or demand or action.

11.2 If at any time an allegation of infringement of copyright is made in respect of Product the Licensor may at its own expense modify or replace Product with a product of equivalent performance so as to avoid infringement.

11.3 The Licensor shall have no liability for any claim of infringement based on:

11.3.1 use of other than an unaltered release of Product; or

11.3.2 use of a combination of Product supplied with programs or data not supplied by the Licensor; or

11.3.3 the Licensee's refusal to use a modified or replaced Product supplied pursuant to Sub-clause 11.2.

11.4 The foregoing states the entire liability of the Licensor with respect to infringement or alleged infringement of any third party proprietary rights by Product or Licensed Materials.

12. Publicity

12.1 Both the Licensee and Licensor may use the name of the other in advertising or publicity relating to Product subject to prior written consent having been obtained. Such consent shall not be unreasonably withheld.

13. Liquidation

13.1 If the Licensor shall make an arrangement with its creditors or shall go into liquidation (other than a voluntary liquidation for the purpose of amalgamation or reconstruction where the emergent company assumed the obligations of the Licensor) or if a receiver shall be appointed for the whole or any part of the Licensor's assets or undertaking then the Licensee shall have the right to continue to use Product and Licensed Materials in accordance with and subject only to Clauses 3.1, 3.2 and 3.3 in perpetuity.

14. Termination

14.1 Either party may terminate this Licence by written notice to the other if the other party is in breach of its obligations under the Licence, and in the event of a breach capable of being remedied, fails to remedy the breach within 30 days of receipt of notice in writing specifying the nature of the breach.

14.2 Further, the Licensee may terminate this Licence on written notice if the Licensor shall make an arrangement with or assignment in favour of its creditors or shall go into liquidation (other than a voluntary liquidation for the purposes of amalgamation or reconstruction) or have a receiver appointed of its property or assets or any part thereof. If termination is invoked by the Licensee under the provisions of this Sub-clause 14.2 then the Licensor will provide the Licensee with a copy of the source coding of Product together with all associated Licensed Materials for the purpose only of enabling the Licensee to maintain Product for use on the Platform(s).

15. Post Termination

15.1 The Licensee agrees that it will not at any time recreate or attempt to recreate Product or Licensed Materials.

15.2 Termination of this Licence howsoever caused shall not affect the rights of either party under this Licence which may have accrued up to the date of termination.

16. Force Majeure

16.1 Neither party hereto shall be liable for any delay or failure to perform its obligations caused by any industrial dispute or other circumstances beyond its reasonable control.

17. Assignment

17.1 The Licence is personal to the Licensee and the Licensee may not assign or otherwise transfer its rights or obligations under this Licence without the prior written consent of the Licensor.

18. Notices

18.1 Any notice to be served hereunder shall be in writing and sent by hand or registered post to the address of the recipient as set out in Schedule 4, or as otherwise notified from time to time.

19. Severability

19.1 If any provision of this Licence shall finally be held illegal or unenforceable such provisions shall be severed and the remainder of the Licence shall remain in full force and effect unless the business purpose of the Licence is substantially frustrated thereby.

20. Waiver

20.1 No waiver of any breach of this Licence shall constitute a waiver of any other breach of the same or other provision of this Licence and no waiver shall be effective unless made in writing.

21. Licensor's Personnel

21.1 The Licensee reserves the right to refuse to admit to premises occupied by or on behalf of the Licensee a person employed by the Licensor, or by a sub-contractor, whose admission would be, in the opinion of the Licensee, undesirable.

21.2 If and when directed by the Licensee, the Licensor shall provide a list of names and addresses of all the persons who may at any time require admission in connection with the performance of the contract, to any premises occupied by or on behalf of the Licensee, specifying the capacities in which they are concerned with the contract and giving such other particulars as the Licensee may reasonably require.

21.3 The decision of the Licensee as to whether any person is to be refused admission to the Licensee's premises and as to whether the Licensor has failed to comply with the provisions in 21.2 of this Condition shall be final and conclusive.

22. Arbitration

All disputes, differences or questions between the parties to the Licence with respect to any matter or thing arising out of or relating to the Licence, except those for which the decision of the Licensee or any other person is by the Licence expressed to be final and conclusive, shall, after written notice by either party to the Licence, to the other, be referred to a single arbitrator agreed for the purpose, or in default of such agreement to be appointed at the request of either party by the President of the British Computer Society. Such reference shall be deemed to be a submission to arbitration under the Arbitration Act 1950 and 1979 or any statutory modification or enactment thereof.

23. Law

This Licence shall be considered as a contract made in England and subject to English law in the jurisdiction of English courts.

24. Entire Agreement

This Licence together with the Agreement constitutes the entire contract between the Licensor and the Licensee as to the subject matter hereof and supersedes all previous communications, representations and arrangements, either written or oral, and the Licensee hereby acknowledges that no reliance is placed on any representation made but not embodied in this Licence or the Agreement.