SOFTWARE LICENCE AGREEMENT RELATING TO VOIPSEC
IMPORTANT – READ CAREFULLY
This software licence agreement (the “Agreement”) is a legal agreement between you (either an individual or a single legal entity) and VoipSec Ltd, a company registered in England and Wales with company number 08776689 (“Voipsec”) for use of the Software (as defined below).
BY DOWNLOADING AND INSTALLING VOIPSEC PRODUCTS YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, VOIPSEC IS UNWILLING TO GRANT YOU A LICENCE TO USE THE SOFTWARE AND YOU MUST DISCONTINUE THE ORDERING PROCESS NOW AND IN THIS CASE THE ORDERING PROCESS WILL TERMINATE.
1.1 In this Agreement the following words and expressions shall have the meanings set out below:
“Confidential Information” means the Software, and any information which is designated by the party disclosing it to be confidential.
“Commencement Date” means the date on which you enter into this Agreement.
“Contract Year” means the 12-month period commencing on the Commencement Date and ending on the first anniversary of the Commencement Date.
“Documentation” means any instruction manuals and any other information associated with the Software supplied by Voipsec to you at any time, whether in electronic form or otherwise.
“Equipment” means any equipment used by you on which the Software is installed.
“Feature Module” means a software module which introduces additional functionality to the Voipsec security platform.
“Feature Module Subscription Fee” means the relevant price for a Feature Module payable by you to Voipsec, which shall be set out in each Order Form.
“Fees” means the Subscription Services Fee, the Feature Module Subscription Fee, and the Subscription Service Renewal Fee.
“Installation Date” means the date the Software is installed onto any Equipment.
“Order Form” means an electronic order form completed by you, when you purchase any Software, and / or Subscription Services.
“Payment Terms” means the payment terms set out in clause 6.
“Premises” means any premises where the Software is being used.
“Security Systems” means the security practices, procedures, systems, policies, software, hardware and infrastructure used by you and deemed by Voipsec to be relevant to the use of the Software.
“Software” means the Voipsec software and any new versions, releases, or other revisions or amendments to the Voipsec software, any Feature Modules, and any software made available by Voipsec to you as part of a Subscription Services package.
“Subscription Services” Subscription Services means a package of support services as specified on the Voip-Sec.com website, for the Voipsec security platform made available to you by Voipsec for the relevant Subscription Services Fee.
“Subscription Services Commencement Date” means the date on which you purchase Subscription Services.
“Subscription Services Fee” means the fee set out in each Order From, charged by Voipsec to you when you purchase a Subscription Services package.
“Subscription Services Renewal Fee” means such sum as may be required by Voipsec to be paid by you in return for receiving Subscription Services for an additional period of time, as described in clauses 4.5 and 4.6.
“Upgrade” means all new versions/releases of or other revisions or amendments to the Software made available by Voipsec.
“Warranty Period” means the period of 90 days commencing on the installation of the Software.
2.1 In consideration of your agreement to comply with the terms of this Agreement, Voipsec grants to you a non-exclusive perpetual licence to use the Software and to possess and refer to the Documentation in accordance with this Agreement.
2.2 Subject to clause 2.3 you shall not reproduce, modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer the Software or create derivative works based on the whole of or any part of the Software or incorporate the Software into any other software program not provided by Voipsec.
2.3 You may make a single backup copy of the Software to the extent reasonably necessary for your own operational security and use within the scope of this Agreement. You shall maintain a record of the date and creation of any copy of the Software made under this clause and shall make all such records available to Voipsec for inspection.
2.4 You shall only use the Software and the Documentation for your internal business purposes, and shall not make the Software and/or the Documentation available for use by any third party without the prior written consent of Voipsec.
2.5 You shall only use the Software on up to the maximum number of channels specified in each Order Form.
2.6 You agree that Voipsec or any third party nominated by Voipsec, may on reasonable notice, have access to your Premises and to any Equipment, as may be required by Voipsec or any such nominated third party in order to verify that this Agreement is being complied with or to investigate any issue with the Software or to repossess the Software under clause 6.4.
2.7 You shall not copy the whole or any part of the Documentation, and shall not remove any trade mark, copyright or proprietary notices from the Documentation.
3.1 From time to time, Voipsec may make Upgrades available to you. Voipsec may at its discretion make such Upgrades available to you free of any additional charge, as part of a Subscription Services package for the relevant Subscription Services Fee, or for such other price as Voipsec may determine.
3.2 Any Upgrades provided to you shall form part of the Software and shall be subject to this Agreement.
4.1 The terms of this clause 4 shall only apply where you have selected the option to purchase Subscription Services.
4.2 Voipsec shall provide to you the Subscription Services for a period of 12 months, beginning with the Subscription Services Commencement Date and terminating on the first anniversary of the Subscription Services Commencement Date.
4.3 Voipsec shall provide to you the Subscription Services for the Subscription Services Fee in accordance with the description of such Subscription Services set out on the Voip-Sec.com website.
4.4 The Subscription Services shall not be provided:
4.4.1 where faults result from the use of the Software in combination with other software, hardware, or other parts of your technical infrastructure not licensed under this Agreement;
4.4.2 where you have not used the Software in accordance with the Documentation and any instructions provided by Voipsec.
4.5 Voipsec may, at its sole discretion, at any time offer you the option to purchase Subscription Services for a further 12 month period or such other period of time as Voipsec may offer.
4.6 Where, under clause 4.5 you choose to pay for further Subscription Services, you:
4.6.1 agree to any additional terms and conditions relating to the provision of the Subscription Services Voipsec may require;
4.6.2 agree that unless otherwise expressly stated in any additional terms and conditions, the terms of this Agreement shall apply in respect of such Subscription Services for the period of time referred to in clause 4.5.
4.6.3 shall pay the Subscription Services Renewal Fee in accordance with the Payment Terms.
4.7 You agree that Voipsec shall have the right to automatically renew such Subscription Services, and to take payment for such Subscription Services in accordance with the provisions set out on the Voip-Sec.com website.
5.1 Voipsec may from time to time, at its sole discretion, make available to you Feature Modules for the Feature Module Subscription Fee.
5.2 Where you choose to purchase a Feature Module:
5.2.1 you agree to any additional terms and conditions relating to the use of such Feature Module which shall be provided to you by Voipsec.
5.2.2 you agree that unless otherwise expressly stated in any additional terms and conditions, the terms of this Agreement shall apply in respect of such Feature Module.
6.1 You shall pay any Fees due under this Agreement to Voipsec on the date on which you complete the relevant Order Form.
6.2 If any Fees are not paid within 30 days of the date such Fees become due and payable, Voipsec reserves the right to charge interest at a daily rate on all sums outstanding until payment in full is received whether before or after judgment at a rate of 3% above the base lending rate of Barclays Bank plc from time to time. Voipsec reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.3 If any Fees are not paid within 30 days of the date such Fees become due and payable without prejudice to any other right or remedy:
6.3.1 Voipsec may terminate this Agreement immediately by giving written notice to you; and / or
6.3.2 Voipsec may terminate or suspend access to any part of the Software, or terminate the provision of the whole or any part of the Subscription Services, for which payment has not been made.
6.4 If any Fees are not paid within 60 days of the date such Fees become due and payable, Voipsec or any third party nominated by Voipsec may repossess any copies of the Software for which payment has not been received by Voipsec and any Documentation, data, records or information relating to such Software.
6.5 You shall be responsible for any applicable sales, use or value added taxes arising out of or in connection with this Agreement, other than UK corporation tax arising in respect of Voipsec’s income or profits. All payments due are expressed exclusive of UK Value Added Tax, which will be invoiced in addition where applicable.
6.6 Requests for Refunds will not be accepted.
7.1 You acknowledge that Voipsec owns, or is licensed to use, all copyright and other intellectual property rights of whatever nature in and relating to the Software and the Documentation together with any customisation and/or configuration work carried out by Voipsec under this Agreement.
7.2 Voipsec warrants that the use and licence of the Software and the Documentation in accordance with this Agreement will not infringe the copyright of any third party.
7.3 Subject to clauses 7.4 and 7.5, if any claim is brought against you that the normal use or possession of the Software or the Documentation in accordance with this Agreement infringes the copyright of a third party, Voipsec shall indemnify you and will keep you indemnified against any damages that are awarded to be paid to any such third party in respect of a claim and any losses, costs (including all reasonable legal fees) and expenses incurred by or on behalf of you provided that you:
7.3.1 as soon as reasonably practicable notify Voipsec in writing of any such claim of which you become aware;
7.3.2 do not make any admission of liability or compromise or agree any settlement of any claim without the prior written consent of Voipsec, which consent shall not be unreasonably withheld or delayed, or otherwise prejudice Voipsec’s or any other third party’s defence of any claim;
7.3.3 give Voipsec, or such person as Voipsec directs, immediate and complete control of the conduct or settlement of all negotiations and litigation arising from any claim; and
7.3.4 upon payment of your reasonable costs, give Voipsec and such other third parties as Voipsec directs all reasonable assistance with the conduct or settlement of any such negotiations or litigation.
7.4 If there is a claim that the use by you of the Software or the Documentation in accordance with the provisions of this Agreement infringes the copyright of a third party, Voipsec shall have the right in its absolute discretion and at its own expense:
7.4.1 to procure the right for you to continue using the Software and/or the Documentation in accordance with the terms of this Agreement;
7.4.2 to make such alterations, modifications or adjustments to the Software and/or the Documentation so that they become non infringing; or
7.4.3 to replace the Software and/or the Documentation with non-infringing software and/or documentation.
7.5 In the event of any claim attributable to the use or possession by you of the Software and the Documentation other than in accordance with the provisions of this Agreement, clauses 7.2 to 7.4 shall not apply and you shall indemnify Voipsec against all liabilities, costs and expenses that Voipsec may incur as a result of such claim.
8.1 Subject to clauses 8.2 to 8.4, Voipsec warrants that the Software will, during the Warranty Period, under normal use, conform in all material respects with the functionality outlined in the Documentation.
8.2 You acknowledge and agree that clause 8.1 shall only apply where the Software has been used in accordance with the Documentation.
8.3 If you notify Voipsec in writing of any material failure of the Software to conform with the Documentation in accordance with clause 8.1 during the Warranty Period, your sole remedy shall be to require Voipsec to correct any demonstrable failure at its own cost and expense within a reasonable time. Voipsec does not give any warranty in respect of:
8.3.1 use of the Software with any software, hardware, networks or other IT infrastructure or operating system environment that does not meet the requirements set out in the Documentation;
8.3.2 any parts or modules of the Software that are not owned by Voipsec;
8.3.3 any interfaces between the Software and software that is not owned by Voipsec; or
8.3.4 operation of any part of the Software being uninterrupted or error free.
8.4 Except as expressly set out in this Agreement, all conditions, warranties, terms and undertakings, express or implied, whether by statute, common law, trade practice, custom, course of dealing or otherwise (including without limitation about quality, performance or fitness or suitability for purpose) in respect of the Software and the Documentation, are excluded to the fullest extent permissible by law.
9.1 Nothing in this Agreement shall exclude or restrict the liability of either party to the other for death or personal injury resulting from the negligent act of that party or for liability for any fraudulent misrepresentation or act.
9.2 Subject to clauses 9.1 and 9.3, in any Contract Year, the total liability of Voipsec to you in contract, tort or otherwise for direct loss arising out of or in connection with this Agreement or your use of the Software or the Documentation or the provision of Subscription Services shall be limited to the greater of [£5] and an amount equal to the sum of all Fees paid by you to Voipsec during that Contract Year .
9.3 Subject to clause 9.1, Voipsec shall not in any circumstances be liable to you, whether in contract, tort, negligence, breach of statutory duty or otherwise, in respect for any loss of profits, revenue, goodwill, business opportunity, loss of or cost of restoration of data or any indirect, consequential, financial or economic loss or any damage, costs or expenses whatever or however arising out of or in connection with this Agreement or your use of the Software or the Documentation.
9.4 If any of the limitations on Voipsec’s liability under this Agreement are adjudged to be unreasonable in the circumstances, then Voipsec’s liability shall be limited to the amount that it can recover from its insurer for the loss in question.
10.1 This agreement shall commence on the Installation Date and shall continue in perpetuity, unless terminated earlier in accordance with the terms of this Agreement.
10.2 Either party may terminate this Agreement immediately by notice in writing to the other if the other:
10.2.1 commits a material or persistent breach of any of its obligations under this Agreement and either that breach is incapable of remedy or the other shall have failed to remedy that breach within 30 days after being given notice by the first party to do so; or
10.2.2 ceases or threatens to cease carrying on its business; suspends making payments on any of its debts or announces an intention to do so; is, or is deemed for the purposes of any law to be, unable to pay its debts as they fall due or insolvent; enters into or proposes any composition, assignment or arrangement with its creditors generally; takes any step or suffers any step to be taken in relation to its winding-up, dissolution, administration (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise); has a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed (in each case, whether out of court or otherwise) in respect of it or any of its assets; has any security over any of its assets enforced; or any analogous procedure or step is taken in any jurisdiction.
10.3 Either you or Voipsec may terminate the Subscription Services on not less than 90 days’ written notice to the other party. Where you choose to terminate the Subscription Services you agree that notwithstanding such termination, Voipsec shall be entitled to charge you the full Subscription Services Fee.
10.4 Any termination of this Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under this Agreement or at law.
10.5 Within seven days of the termination of this Agreement (by either party for whatever reason) you shall, at Voipsec’s option, either return to Voipsec or destroy all copies of the Software and the Documentation in your possession and you shall certify in writing to Voipsec that you have complied with such obligation.
10.6 Upon termination or expiry of this agreement:
10.6.1 You shall cease to use the Software;
10.6.2 You shall permanently delete or return to Voipsec all copies of the Software and all copies of any Documentation.
10.6.3 all licences (including the Agreement) granted under this Agreement shall immediately terminate; and
but any provision of this Agreement which expressly or by implication is intended to survive termination of this Agreement shall remain in full force and effect.
10.7 Any termination of this Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under this Agreement or at law.
11.1 Neither party shall at any time after the date of this Agreement:
11.1.1 divulge or communicate to any person, company, business entity or other organisation;
11.1.2 use for its own purposes or for any purposes other than those of the other party; or
11.1.3 through any failure to exercise due care and diligence, cause any unauthorised disclosure of,
any trade secrets or Confidential Information relating to the other party, provided that these restrictions shall cease to apply to any such information that becomes available to the public generally other than through a breach of a duty of confidentiality owed to the other party and that neither party shall be restricted from disclosing the Confidential Information or any part of it pursuant to a judicial or other lawful government order.
11.2 Where Voipsec is processing personal data for you through the Software, you acknowledge that you are the data controller of such personal data and you shall be responsible for complying with the DPA in respect of the personal data. In this clause 11.2, the terms “data controller”, “personal data” and “processing” shall have the meanings prescribed under the Data Protection Act 1998 (“DPA”).
11.3 Nothing in this clause 11 shall prevent:
11.3.1 Voipsec from disclosing the Software or any Documentation to any third party; or
11.3.2 you from disclosing the Software and / or any Documentation to such of your employees, sub-contractors and advisors as is necessary for you to be able to exercise your rights and comply with your obligations under this Agreement, provided you inform such parties of the confidential nature of the Confidential Information before disclosure and at all times, you remain responsible for such parties’ compliance with the obligations of confidentiality set out in this Agreement.
12.1 Neither party shall be liable for any delay in or for failure to perform its obligations under this Agreement, other than an obligation to make any payment due to the other party, if that delay or failure is caused by circumstances beyond the control of that party including, without limitation, fires, strikes, insurrection, riots, embargoes, or regulations of any civil or military authority.
12.2 The failure or delay of a party to exercise or enforce any right under this Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any later time or times.
12.3 You shall not be entitled to assign this Agreement nor any of your rights or obligations under this Agreement nor sub-license the use of the Software or the Documentation without the prior written consent of Voipsec.
12.4 No other amendment or variation of this Agreement shall be valid and binding on the parties unless it is agreed by the parties, recorded in writing as an express amendment or variation of this Agreement and signed by or on behalf of each of them.
12.5 This Agreement, constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes and replaces all prior agreements, negotiations and discussions between the parties relating to it. You confirm and acknowledge that you have not been induced to enter into this Agreement by any representation, warranty, or undertaking not expressly incorporated into it. However, nothing in this Agreement purports to exclude liability for any fraudulent statement or act.
12.6 No person who is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
12.7 If any provision of this Agreement is held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.
12.8 Any notice to be given under this Agreement shall be in writing and shall be delivered by hand, sent by first class post or sent by facsimile (such notice to be confirmed by letter posted within 12 hours) to the address of the other party set out in this Agreement (or such other address as may have been notified). Any such notice or other document shall be deemed to have been served: if delivered by hand - at the time of delivery; if sent by post - upon the expiration of 48 hours after posting; and if sent by facsimile - at 9am on the next business day after the facsimile was dispatched.
12.9 This Agreement shall be governed by and construed in accordance with English law and each party by entering into this Agreement irrevocably submits to the non-exclusive jurisdiction of the English Courts.