"License" means the terms upon which the Licensee is authorised by Easysoft to use the Software;
"Licensee" means a person who is licensed to use the Software by Easysoft;
"Easysoft" means Easysoft Limited (registered in England and Wales under number 2780502) whose registered office is at Thorp Arch Grange, Thorp Arch, Wetherby, UK. LS23 7BA;
"Support Contract" means the agreement between Easysoft and the Licensee to provide Support on the Support Terms;
"Maintenance Release" means any corrected version of any of the Software from time to time issued by Easysoft;
"New Release" means any improved or modified version of any of the Software from time to time issued by Easysoft;
"Purchase Order" means the order document or process that specifies the Support service the Licensee requires;
"Response Time" means the time within which Easysoft is to use reasonable endeavours to respond to a request for support from the Licensee as set out in clause 4.3 below;
"Services" means the provision of support in respect of the Software by Easysoft in accordance with clause 4 below under Support;
"Software" means the Software specified in the Purchase Order;
"Support Fee" shall mean the periodic charge for the relevant service specified on the Purchase Order as increased from time to time pursuant to clause 3.3;
"Support Terms" means these terms and conditions of maintenance and support.
"Additional Charges" means additional sums which may be charged under these Support Terms and Conditions in accordance with Easysoft’s rates from time to time for work undertaken on a time and materials basis;
2. Provision of Services
On payment of the Support Fee in accordance with clause 3 below Easysoft shall provide the Services to the Licensee upon these Support Terms for the period for which that payment relates.
3. Support Fee
- The Support Fee shall be levied by Easysoft in advance of the current expiry date and shall be payable by the Licensee within 14 days of receipt of Easysoft's invoice therefore. No payment shall be considered made until it is received by Easysoft.
- Easysoft reserves the right to charge the Licensee interest in respect of the late payment of any sum due under these Support Terms (as well after as before judgement) at the rate of 2 per cent per annum above the Current Bank Rate supplied by the Bank of England.
- Easysoft shall be entitled at any time to increase the support & maintenance fee for any subsequent support & maintenance ordered.
- The Support Fee is exclusive and net of any applicable government taxes duties or such other additional sums (including without limitation value added tax) that the Licensee will be additionally liable to pay.
4. Technical Support
- Easysoft offers services on the Support Terms as follows:-
- upon request by the Licensee advice by telephone on the use of the Software;
- upon request by the Licensee information and advice by telephone as to forthcoming new releases of the Software;
- upon request by the Licensee the diagnosis of faults in the Software and instructions as to the rectification of such faults by telephone;
- upon request by the Licensee and upon return of the media containing the previous release the creation and despatch to the Licensee of Maintenance Releases;
- upon request by the Licensee and upon return of the media containing the previous release the despatch to the Licensee from time to time of any New Release of the Software.
- The Licensee shall supply in writing to Easysoft a detailed description of any fault requiring the Support Services and the circumstances in which it arose forthwith upon becoming aware of the same.
- Between the hours of 8.30 am and 5.30 pm Monday through to Friday (excluding bank and other public holidays) Easysoft shall use its reasonable endeavours to respond to the Licensee within 24 hours of a request for Services.
- The Services shall not include the diagnosis and rectification of any fault resulting from:
- the improper use operation or neglect of the Software or the equipment upon which they are run:
- the modification of the Software or its merger (in whole or in part) with any other software except as permitted by the License;
- the failure by the Licensee to implement recommendations in respect of or solutions to faults previously advised by Easysoft;
- any repair adjustment alteration or modification of the Software by any person other than Easysoft without Easysoft’s prior consent;
- the Licensee using a release of the Software which is not the latest release of the Software from time to time and is not the release which was issued prior to the latest release of the Software from time to time.
- the use of the Software for a purpose for which it was not designed;
- rectification of lost or corrupted data arising for any reason other than Easysoft’s own negligence;
- loss or damage caused directly or indirectly by operator error or omission;
- loss, damage or faults caused directly or indirectly by any alteration, upgrade or new release of any software operating in conjunction or closely with the Software;
- a fault in the equipment or in any other software operating in conjunction with or closely with the Software.
- With the exception of the faults set out in points 4.4.6 and 4.4.7 above, Easysoft shall upon request by the Licensee provide Support notwithstanding that the fault results from any of the circumstances described in clause 4.4 above or shall provide Support to the Licensee in circumstances which are not covered by these Support Terms. Easysoft shall in such circumstances be entitled to levy Additional Charges in the manner set out in clause 4.7 below.
- Without prejudice to clause 4.5 above Easysoft shall be entitled to levy reasonable Additional Charges in the manner set out in clause 4.7 below if Support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee’s request to have been unnecessary.
- Additional Charges shall be levied by Easysoft monthly in arrears and shall be paid by the Licensee (together with value added tax thereon) within 14 days of receipt of an invoice therefore.
- Subject to the exceptions set out in clause 4.4 and the limitations upon the liability of Easysoft detailed in clause 6 below Easysoft warrants that it will perform the Services with reasonable care and skill.
- Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the provision of the Services are hereby excluded to the fullest extent permitted by law.
- Easysoft shall not be liable for any loss or damage sustained or incurred by the Licensee or any third party (including without limitation any loss of use of the latest New Release or loss of or spoiling of the Licensee’s data) resulting from any defect or error in the latest New Release except to the extent that such loss or damage arises from any unreasonable delay by Easysoft in providing the Services and then only to the extent not excluded by these Support Terms.
- Easysoft shall not be responsible for the maintenance, accuracy or good running of any version of the Software except the latest New Release and the release prior to the latest New Release.
- Subject to clause 6.5 below the total liability of Easysoft under clauses 5.1, 5.3 and 6.1 of these Support Terms shall not exceed the Support Fee for the year of the Support Contract.
- Easysoft shall not be liable to the Licensee for loss of profits or contracts or other indirect or consequential loss whether arising from negligence breach of Warranty, contract or otherwise.
- Easysoft does not seek to limit or exclude liability for death or for personal injury arising from Easysoft’s negligence.
- Easysoft shall not be liable to the Licensee for any loss arising out of a failure by the Licensee to keep full and up to date security copies of the Software and data it uses in accordance with best computing practice.
7. Duration of Agreement
The Support Contract shall continue until terminated in accordance with the provisions of clause 8 below.
- The Support Contract may be terminated:
- by the Licensee giving not less than 180 days’ written notice to Easysoft;
- forthwith by Easysoft if the Licensee fails to pay any sum due hereunder within 30 days of the due date therefore;
- forthwith by Easysoft or the Licensee if the other commits any material breach of any term of any of these Support Terms or any terms of the Support Contract (other than one falling within 8.1.2 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 90 days of a written request to remedy the same;
- forthwith by Easysoft or the Licensee if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction);
- forthwith by Easysoft or the Licensee upon termination of the License for whatever reason.
- Any termination of the Support Contract pursuant to this clause 8 shall be without prejudice to any other rights or remedies to which Easysoft and the Licensee may be entitled hereunder or at law and shall not affect any accrued rights or liabilities of either of them nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
9. Force Majeure
- Neither Easysoft or the Licensee hereto shall be liable for any breach of the Support Terms resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, embargoes, container shortages, wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an "Event of Force Majeure").
- Each of Easysoft and the Licensee agree to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
- If a default due to an Event of Force Majeure shall continue for more than 13 weeks then the party not in default shall be entitled to terminate the Support Contract. Neither Easysoft nor the Licensee shall have any liability to the other in respect of such termination as a result of an Event of Force Majeure.
The waiver by either Easysoft or the Licensee of a breach or default of any of the Support Terms by the other shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Easysoft or the Licensee to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by email or facsimile (in all cases to be confirmed by letter posted within 12 hours) to the address of the other set out or referred to in the Support Terms (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email or facsimile) upon the expiration of 12 hours after dispatch.
12. Invalidity and Severability
If any provision of the Support Terms shall be found by any court to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Support Terms and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
13. Entire agreement
Easysoft shall not be liable to the Licensee for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by a duly authorised representative of Easysoft in writing or expressly incorporated or referred to in the Support Terms.
This agreement shall be bind and inure for the benefit of the successors in title of Easysoft or the Licensee hereto.
15. Assignment and sub-licensing
The Licensee shall not be entitled to assign the Support Terms nor any of its rights or obligations hereunder.
The Support Terms shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.