1. Scope of this Agreement
1.1 Document logistics grants to the Customer a non-exclusive, non-transferable, personal license to use the Software at the Location for the number of servers or end users specified on the Order Form. If the Customer proceeds to use the Software, the Customer agrees that it has accepted the terms of this Agreement. This license to use the Software shall terminate if the Customer no longer takes Maintenance and Support services (such as if termination occurs pursuant to Clause 2.2 below).
1.2 Document logistics undertakes to install the Software. Document logistics will provide Maintenance and Support for as long as the Customer pays for the Maintenance and Support.
1.3 Except as expressly agreed, the Customer will not rent, lease, sub-license the Software, Third Party Software or Products, nor distribute the Software or Third-Party Software to any third party.
1.4 Document Logistics shall have no liability for the repair of defects relating to the Products and/or Third-Party Software, and the Customer’s right in respect of any such defect shall be limited to the relevant manufacturers’ warranties.
1.5 The Software may be subject to security measures to protect Document Logistics’ rights, such as in the event of non-payment.
2. Maintenance and Support
2.1 Unless as expressly agreed, Document Logistics does not provide Maintenance and Support for Third Party Software or the Products.
2.2 The annual Maintenance and Support service will automatically renew for successive twelve (12) month terms on each anniversary of this Agreement unless either party has first served three (3) months’ prior written notice of termination on the other party, such notice to expire on the relevant anniversary date. This clause 2.2 is without prejudice to the other rights of termination set out in this Agreement.
2.3 The Customer undertakes to upgrade to the current version of the Software within twelve (12) months aft er delivery by Document Logistics.
3. Training and Professional Services the Customer may order training and/or professional services with the Software, in which case all training and/or professional services days must be taken within 12 months of the date of their order.
4.1 The Customer shall pay all invoices within 30 days of their date. Document Logistics shall invoice the Customer in advance. Document Logistics reserves the right to charge interest at 4% above LIBOR on all outstanding amounts.
4.2 Document Logistics reserves the right to increase its charges once in any twelve-month period upon giving the Customer at least 30 days’ prior written notice of such increase.
4.3 Notwithstanding any other rights under this Agreement, Document Logistics may suspend or terminate the performance of its obligations under this Agreement where the Customer is in default of payment, provided that Document Logistics has first served the Customer with at least 5 days’ prior written notice of its intention to suspend or terminate the Services.
4.4 All charges are given exclusive of VAT, which will be added at the rate and in the manner prescribed by law.
5. Customer Responsibilities
5.1 It is the Customer’s responsibility to ensure that Equipment is compatible with the Software, any Third-Party Software and Products.
5.2 The Customer will allow reasonable physical and systems access to its Location and Equipment to enable Document Logistics to install the Software and to provide Maintenance and Support. Document Logistics engineers will need network logins for the Software being used on the Equipment with administration rights.
5.3 The Customer agrees to use the Software in accordance with all operating instructions and agreed procedures and not to change its configuration without the approval of Document Logistics.
5.4 The Customer will not alter or modify the Software, transfer the Software from the Location, combine or incorporate it in other programs, or decompile or disassemble the object code version of the Software.
5.5 The Customer will keep full security copies of all data processed by the Software. Document Logistics will not be liable for any loss of data.
5.6 If Document Logistics cannot reproduce a logged fault, the Customer will assist in providing remote access to the PC and or Server to further investigate the fault.
Document Logistics will perform the Services in a workmanlike and professional manner. The Software is licensed “AS IS”. Save as otherwise provided for in this Agreement, Document Logistics grants no warranties to the Customer regarding the Software, the Third-Party Software or the Products, including but not limited to implied warranties as to their fitness for any purpose, that the Software, Third Party Software and Products will be error-free or the operation of the Software, Third Party Software and Products will be uninterrupted.
7.1 Both parties shall use all reasonable endeavors to ensure that all information received from the other party is not disclosed to any third party and is not used for any purpose other than in the proper performance of obligations hereunder.
7.2 Information belonging to the other party may be disclosed or used (as appropriate) by a party without the consent of that other (the disclosing party) if: it is now or subsequently becomes publicly known to that party through no wrongful act by that party; or if it is at the time of disclosure already known by the party to whom disclosure is made; or it is required to be disclosed by either party by an order of law or other binding regulation; or it is to be disclosed to the professional advisors of that party where the principle of client confidentiality would prevent the further release of that disclosed information by the advisor concerned.
7.3 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding expiry or termination of this Agreement.
8. Intellectual Property
Customer acknowledges that Document Logistics and its licensors, own the intellectual property rights to the Software, the Third-Party Software and the Products as appropriate.
9. Termination of Agreement
9.1 In addition to the right of termination at clause 4.3 above, Document Logistics may terminate this Agreement in the event that the Customer is in material breach of any of its obligations under this Agreement and, in the event that the breach or failure is remediable, the Customer has failed to remedy that breach with 30 days’ written notice of such breach.
9.2 Document Logistics may terminate this Agreement immediately if the Customer is insolvent or bankrupt, or seeks protection from its creditors, or if a petition is filed in any court to declare its bankruptcy or re-organization and is not dismissed within thirty (30) days.
9.3 Upon termination of the Agreement, all outstanding fees are immediately due and payable, and all rights to use the Software will be immediately revoked.
10.1 Customer shall defend and indemnify Document logistics against all damages, liabilities, claims, losses and expenses (including reasonable attorneys’ fees) arising out of, or resulting in any way from any breach by the Customer of this Agreement.
10.2 Document logistics shall defend and settle any third party claim against Customer that the Software infringes a UK patent or copyright, (“Infringement Claim”) and indemnify the Customer against the resulting costs and damages finally awarded against a third party by a court of competent jurisdiction, provided the Customer (i) notifies Document logistics promptly in writing of such claim, (ii) grants Document logistics sole control over the defense and settlement thereof (so long as the Customer is released without condition of any and all liability in connection with such claim), and (iii) reasonably cooperates in response to a Document logistics request for assistance. If the Software has become (or in Document logistics’ reasonable judgment is likely to become) the subject of an Infringement Claim: Document logistics shall, at its option and expense, (a) procure for the Customer the right to make continued use thereof, or (b) replace or modify the Software with substantially similar technology, or (c) if (a) and (b) above are not feasible for Document logistics, then terminate the Agreement or the Customer’s use of the Software without further liability. Document logistics shall have no liability if the alleged infringement is based on (1) combination with non-Document logistics products or services, (2) use for a purpose or in a manner for which the Software was not designed, or (3) use of any older version of the Software when use of a newer version would have avoided the infringement (provided the Customer was made aware of the availability of the newer version of the Software). This Clause 10.2 states the Customer’s sole and exclusive remedy and Document logistics’ entire liability for infringement claims.
11. Force Majeure
Neither party shall be liable to the other for any failure to perform or delay in performance of its obligations hereunder, other than an obligation to pay monies, caused by any event or circumstance whatsoever beyond its reasonable control including (without limitation) (1) Act of God (2) outbreak of hostilities, riot, civil disturbance acts of terrorism (3) the act of any government or authority (including, revocation of any license or consent) (4) fire, explosion, flood, fog or bad weather (5) default of suppliers or sub-contractors (6) theft, malicious damage, strike, lock-out or industrial action of any kind. If a party is prevented from performing its obligations by an event of force majeure which continues for more than 30 days then either party may terminate this Agreement at any time thereafter on giving written notice to the other party.
12.1 Either party’s liability to the other shall be unlimited in respect of:
(a) death or personal injury;
(b) such liability which cannot be excluded or limited by law (such as fraudulent misrepresentation);
(c) infringement of intellectual property rights (save in relation to the indemnity in Clause 10.2 above). The rest of this Section 12 shall be subject to this Clause 12.1.
12.2 Except as set out in Clause 12.1, Document logistics shall not in any circumstances be liable in contract, tort or otherwise, whether direct or indirect, for loss of profits, business or anticipated savings, or for any indirect or consequential loss, howsoever caused or arising. Nor shall Document logistics be liable for any loss of data or for the costs of recovering any lost data.
12.3 Subject to Clauses 12.1 and 12.2 above, Document logistics' liability in respect of breach of contract, tort, negligence, breach of statutory duty or howsoever arising shall be limited to a sum equivalent to the Charges paid by the Customer pursuant to the Agreement during the twelve-month period preceding such incident.
13. U.S. Government
The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to the restrictions as set forth in sub-paragraph (c)(1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or sub-paragraphs c (1) and (2) of the Commercial Computer Software Restricted Rights at 48 C.F.R. 52.227- 19 as applicable.
14.1 Document logistics may audit or instruct a third party to audit and inspect the Customer’s books, records and systems to ensure compliance with this Agreement, the Customer providing reasonable access.
14.2 Each party acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, each party shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
14.3 Document logistics may assign the benefit of this Agreement and its right and obligations hereunder. The Customer may not assign, charge (otherwise than by floating charge) or dispose of any of its rights hereunder, or sub contract or otherwise delegate any of its obligations hereunder, without the prior written consent of Document logistics.
14.4 Only parties to this Agreement may enforce its terms.
14.5 The construction, validity and performance of this Agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.