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General Terms and Conditions 20150210 : Thursday, February 12, 2015

General Terms and Conditions (from February 2015)

These General Terms together with our Software Licence, Data Licence, Support Terms and Cloud Services Terms (as the case may be) form the Agreement between you and Limited (“51D”), a company incorporated under the laws of England and Wales (company numbered 6880938) with its registered office located at 5 Charlotte Close, Caversham, Reading RG4 7BY and apply to the products and/or services we supply to you.

In the event of any conflict or inconsistency between these General Terms and any other terms or licence, those other terms will prevail to the extent of any conflict or inconsistency in respect of the relevant product or service. These General Terms contain provisions which limit our liability to you, as set out under the heading “Our Liability”, below.

1. Definitions

51D Software software produced or distributed by 51D, whether licensed on open source terms or the 51D Software Licence, as the case may be.
Adaptation a version, amended version or translation. “Adaptations” is interpreted accordingly.
Business Days every day excluding Saturdays, Sundays and English bank or public holidays in England.
Business Hours between 09.00 hours and 17.30 hours UK time, on Business Days.
Customer either you or a customer of yours.
Documentation the latest version of the documentation we may publish in respect of Licensed Materials, as updated from time to time.
Developer a developer is an individual, who is you, an employee of yours, or an employee or contractor to a software development company engaged by you.
Enhanced Data device data which we license to you and attracts a Fee.
Enhanced Software software produced by 51D which we make available to you and attracts a Fee.
Fees the costs and charges payable for the goods and/or services as set out in the Order and/or as notified by us to you under clause 6 of these General Terms. “Fee” shall be interpreted accordingly.
General Terms these General Terms.
Initial Term the initial term for the applicable licence or services, as set out in the Order.
Licence Key the licence key to activate products or services or enable access to products or services.
Licensed Materials products and/or services licensed by us to you, other than under the terms of an open source licence.
Mozilla Public Licence version 2.0 of the Mozilla Public Licence published at
Order the order placed by you setting out details of the licences and/or services which you wish to be supplied by us, and includes the description of the products and/or services, and any other terms referred to the order or description.
Support Fees Fees payable by you for Support Services, as set out in the Order or as notified by us to you under clause 4 of these General Terms.
Website our website published at for the time being.

2 Intellectual Property Rights

2.1 You agree that all intellectual property rights in the Licensed Materials throughout the world remain vested at all times with us and/or our licensors, that rights in the Licensed Materials are licensed and not sold to you, and that you have no rights in or to use the Licensed Materials other than the licensed expressly granted herein, and not otherwise.

2.2 As at the date of this Agreement, the Licensed Materials do not infringe the intellectual property rights of any third party.

3 Warranties

3.1 Other than as provided in this Agreement or as permitted by your statutory rights which cannot be excluded by Agreement, you agree that you will not:

a) copy any Licensed Materials except where such copying is incidental to normal use of the Licensed Materials;

b) rent, lease, sublicence, loan, translate, merge, make Adaptations of or otherwise modify Licensed Materials;

c) permit or authorise Licensed Materials or any part thereof to be combined with or become incorporated in any other program, or used as a library by any other program;

d) use the Licensed Materials and/or Documentation to provide services to third parties; and/or

e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided for in this Agreement;

f) use Licence Keys issued by 51D other than in accordance with this Agreement; and/org. disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Licensed Materials.

3.2 This Agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Licensed Materials and services and all warranties and conditions other than those set out herein are excluded to the extent permitted by law. No condition, warranty, misrepresentation or other terms, express or implied, are binding on us except other than as expressly stated in this Agreement. Any condition, warranty, misrepresentation or other term concerning the supply of the Licensed Materials or our services which might otherwise be implied into, or incorporated in, this Agreement, or any collateral contract, whether by statute, common law or otherwise howsoever is excluded to the fullest extent permitted by law.

3.3 You agree that Licensed Materials:

a) have not been developed to meet your individual requirements and that it is your responsibility to ensure that the facilities and functions of Licensed Materials meet your requirements.

b) are not free of bugs or errors and you accept that the existence of any errors which do not materially interfere with the overall functioning of the Licensed Materials as a condition of supply and licensing of Licensed Materials;

c) may rely upon the proper functioning of third party computing infrastructure which we do not control, and you accept that where such infrastructure fails services made available by Licensed Material may not be available to you;

d) shall not be accessed in order to build a product or service which competes with the Services and/or the Documentation; and

e) are licensed to you and not to any subsidiary or holding company or entity.

3.4 You warrant, represent and undertake to:

a) implement and maintain security measures to safeguard the Licensed Materials from use contrary to the terms of this Agreement;

b) refrain from exceeding terms of licences granted to use Licensed Materials;

c) pay on demand for unlicensed use of Licensed Materials;

d) procure that third parties shall not cause you to exceed your entitlement to use Licensed Materials; and

e) maintain a full and accurate documentary record of use and distribution of Licensed Materials and shall produce that record to us on request.

4 Fees

4.1 Fees are exclusive of VAT, which is payable by you at the rate and in the manner for the time being prescribed by law.

4.2 You must pay the Fees on or before the start of the Initial Term or renewal term. If you have agreed to pay by instalments, payments are due as set out in the Order. You irrevocably authorise us to use any credit or debit card details to payments due from you to draw payment. Should you not provide us with credit or debit card details, you must pay the Fees within the time period allowed for such payment. If you miss a payment you are obliged to make, we will be entitled to draw the entire outstanding balance for the relevant period without notice to you.

4.3 In the event that you do not pay the Fees, and either we terminate any licences granted to you, you will pay us 80% of the outstanding Fees for the Licensed Materials forthwith upon demand.

5 Verification

5.1 You must permit us or our representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Licensed Materials are being kept or used, and any records kept pursuant to this Agreement, for the purpose of ensuring that you are complying with the terms of this Agreement and ascertaining the extent of any misuse, past or present.

5.2 You will provide within 24 hours of a request made in writing any information and documentation reasonably requested setting out the production environment, development environment, and infrastructure of the computer systems upon which Licensed Materials reside, are consumed or accessed, which shall include but not be limited to:

a) The machine names of servers, computers and devices, including all virtual machines installed on physical servers (“machines”);

b) Internal and external IP addresses of such machines;

c) The physical location of machines; and/or

d) The names, job role(s) and job description of persons accessing Enhanced Data during the terms of this Licence and the machines from which they do so.

5.3 In the event that you do not comply with the requirements or produce the records maintained as required by this clause, our records of use of Licensed Materials shall be deemed conclusive of your use and use of others authorised by you to use Licensed Materials.

6 Termination

6.1 We may terminate this Agreement immediately by written notice to you if you are in material breach which you fail to remedy (if remediable) within 14 days written notice specifying the breach and requiring you to remedy the same within the said period, or are in persistent breach of the terms of this Agreement without notice to you. It will be a material breach of this Agreement to fail or refuse to comply with any of the provisions of clauses 2 to 5 of these General Terms.

6.2 We may terminate any Order immediately by written notice to you within 14 days after we accept that Order for our convenience. Non-exhaustive examples of when we may do so are where we believe that you are a competitor or may intend to misuse any Licensed Materials, but we are not obliged to state any reason for such termination. We will refund all Fees paid by you in respect of the Order up to such termination.

7 Effects of Termination

7.1 Upon termination of this Agreement or any Order for any reason:

a. all rights and licences granted to you under this Agreement terminate;

b. you will cease all activities authorised by this Agreement;

c. you must immediately pay any sums due to us under this Agreement; and

d. you will immediately and irretrievably delete Licensed Materials from all computer equipment in your possession or control upon request and certify in writing to us upon request that you have done so upon request.

8 Our Liability

8.1 Nothing in this Agreement will limit or exclude our liability for death or personal injury resulting from our own negligence, or fraudulent misrepresentation.

8.2 We will not under any circumstances whatever be liable, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any (i) loss of income, loss of business profits or contracts, business interruption, loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, or loss of, damage to or corruption of data, or (ii) any indirect or consequential loss or damage of any kind however arising.

8.3 Our maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, for any and all claims arising during any calendar year, will in all circumstances be limited to a sum equal to the lesser of £3,000 and 120% of the Fees paid during that calendar year.

9 Force Majeure

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 10 days , the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.

10 Notices

10.1 All notices given by you to us must be given to us at our registered address or email address published at /ContactUs.

10.2 We issues notices to you at (1) the email address or postal address provided by you when placing an Order, (2) the registered office of your business, (3) any business address published by you, and/or (4) the email or postal address provided by you and recorded in the Account Details area of our Website.

10.3 Notice will be deemed received and properly served on the next Business Day 24 hours after an email is sent; three Business Days after the date of posting of any letter, and if hand delivered, on that day. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an email, that the email was sent to the specified email address of the addressee.

11 General

11.1 The licences granted under this Agreement are personal to you. You may not transfer the licences granted hereunder to any other person other than as specified herein. Should you attempt to do so, all licences granted hereunder shall automatically terminate. We may assign the benefit of this Agreement to any person at any time without notice to you.

11.2 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement which is caused by any event or events outside our reasonable control.

11.3 Variations to this Agreement shall be made in writing and signed by each party, including a director of 51D. We may amend or replace these General Terms or any other terms or licence by posting them to our Website. Please check our Website regularly. Where we consider in our sole discretion that any such change to the terms of this Agreement has a material adverse effect on you, then you may terminate this Agreement by notice in writing to us given not more than 28 days after we publish an updated version to our Website. If you do so, we will reimburse Fees for the future period of Services or applicable licence.

11.4 If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, that term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

11.5 This Agreement and any document expressly referred to in it constitute the whole Agreement between us and supersedes any previous arrangement, understanding or Agreement between us, relating to the software which is the subject of an Order and Documentation. You confirm that you have not relied on any statement made by us other than those set out in this Agreement prior to entering into this Agreement. Documents such as our Licensing Guidance do not form part of this Agreement.

11.6 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall limit or restrict the rights of that party. Any waiver of rights shall not operate as a waiver of any subsequent breach and no right, power or remedy conferred upon or reserved for either party is exclusive of any other right or remedy available to that party. Each such right power or remedy is cumulative.

11.7 You agree that we may include your company name or trading name in our list of customers on our Website and in any other promotional material we produce for our Website or elsewhere. We may display your company logo on our Website and in any promotional material, wherever we may choose to publish or arrange to publish such material.

11.8 This Agreement, its subject matter or its formation (including non-contractual disputes or claims) will be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of English Courts.