SOFTWARE LICENCE AGREEMENT FOR
SC LIMITED (trading as WorldBackups.net)
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: This licence agreement (License) is a legal agreement between you (Licensee or you) and SC Limited (trading as WorldBackups.net) of The Old Royal Mail Sorting Office, Stokes Road, Corsham, Wiltshire SN13 9BE (Licensor or we) for this WorldBackups.net software (Software), which includes computer software, the data supplied with it, the associated media, printed materials and documentation (Documentation).
BY USING OR INSTALLING THIS SOFTWARE YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW. IN THIS CASE YOU MUST RETURN THE MEDIUM ON WHICH THE SOFTWARE IS STORED AND ALL ACCOMPANYING DOCUMENTATION TO THE LICENSOR. IF YOU PURCHASED THIS SOFTWARE FROM AN AUTHORISED THIRD-PARTY RETAILER, PLEASE NOTE THAT THE RETAILER HAS THE RIGHT TO ENTER INTO THIS LICENCE ON OUR BEHALF.
1. GRANT AND SCOPE OF LICENCE
1.1 In consideration of you agreeing to abide by the terms of this Licence, the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence.
1.2 You may:
(a) Install and use the Software for your private or business purposes only, either (as agreed between the parties):
(b) Make up to 2 copies of the Software for back-up purposes only, provided that this is necessary for the activities permitted by condition 2.1;
(c) Receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by the Licensor from time to time;
(d) Use any Documentation in support of the use permitted under condition 1.1 and make up to 2 copies of the Documentation as are reasonably necessary for its lawful use.
2. LICENSEE'S UNDERTAKINGS
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) Not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
(b) Not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) Not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) Not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(i) Is used only for the purpose of achieving inter-operability of the Software with another software program;
(ii) Is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(iii) Is not used to create any software which is substantially similar to the Software;
(e) To keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) To supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;
(g) to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this Licence immediately on receipt of such version or release;
(h) To include the copyright notice of the Licensor on all entire and partial copies of the Software in any form;
(i) Not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person without prior written consent from the Licensor.
(j) To perform a test restore of all of your backed up data on our servers every six (6) weeks. This is to prove you can restore your data successfully. By not performing this test restore you acknowledge that we cannot guarantee your backup(s) will restore successfully;
(k) To check in a professional manner and on a daily basis all logs, reports and email alerts corresponding to all of your backups to ensure they are working and if not to inform us for fault resolution;
3. INTELLECTUAL PROPERTY RIGHTS
3.1 You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to the Licensor, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence. The Software may contain software which originated with third party vendors and without limiting the general applicability of the other provisions of this Agreement, you agree that (a) the title to any third party software incorporated in the Software shall remain with the third party which supplied the same; and (b) you will not distribute any such third party software available with the Software, in any manner, unless the license of the third party software states otherwise.
3.2 The Licensor expressly reserves all rights not granted to you herein, notwithstanding the right to discontinue or not to release the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or characteristics of the Software.
3.3 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
4.1 The Licensor does not warrant that the Software will be error-free. Except as provided herein, the Software is furnished "as is" without warranty of any kind, including the warranties of merchantability and fitness for a particular purpose and without warranty as to the performance or results you may obtain by using the Software. You are solely responsible for determining the appropriateness of using the Software and assume all risks associated with the use of it, including but not limited to the risks of program errors, damage to or loss of data, programs or equipment, and unavailability or interruption of operations.
4.2 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
4.3 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
4.4 You acknowledge you should perform regular test restores of your data from our system back onto yours. The frequency of the test restores is at your discretion and for you to determine. We recommend a minimum period of 6 weeks between test restores.
5. LICENSOR'S LIABILITY
5.1 Nothing in this Licence shall exclude or in any way limit the Licensor's liability for fraud or for death and personal injury caused by its negligence or any other liability to the extent that it cannot be excluded or limited as a matter of law.
5.2 Subject to condition 5.1 the Licensor shall not be liable under or in connection with this Licence or any collateral contract for:
(a) Loss of income;
(b) Loss of business profits or contracts;
(c) Business interruption;
(d) Loss of the use of money or anticipated savings;
(e) Loss of information;
(f) Loss of opportunity, goodwill or reputation;
(g) Loss of, damage to or corruption of data; or
(h) Any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
5.3 Subject to condition 5.1 and condition 5.2, the Licensor's maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to 10% of the Licence Fee. For the avoidance of doubt the Licensor is not under any obligation to restore the data to the Licensee or on to the Licensee's systems or servers and it is recommended that a specialist engineer is engaged for such restoration. The Licensor's only obligation under this Licence is to store and provide a copy of the data to the Licensee upon receipt of a written request.
5.4 Subject to condition 5.1, condition 5.2 and condition 5.3, the Licensor's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
5.5 This Licence sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
6. PAYMENT AND TERMINATION
6.1 You are required to provide valid contact details, including a telephone number and email address and must inform us of any changes within 7 working days of such changes.
6.2 Payment terms for all invoices and services are strictly 30 (THIRTY) days from date of invoice. All invoices are issued in arrears and are subject to VAT at the prevailing rate.
6.3 We reserve the right to charge statutory interest on all invoices outstanding after 30 days, in accordance with the 'Late Payment of Commercial Debts (Interest) Act 1998'.
6.4 If any invoice is outstanding after 30 days, your account will be placed on hold and you will be denied access to the customer online support facility. You will receive one reminder by email prior to suspension of any service you may receive from us. Please note that, if you have more than one service with us, failure to pay any invoice in respect of any service will result in the suspension of all services and not just the one in default until payment is received.
6.5 Failure to pay after a further 7 days will lead to immediate termination of all Services and possible loss of data if the server is owned by us.
6.6 You must inform us at least 2 working days before the end of any month if you intend to cancel. Your account and invoices will cease after a further 30 days from the next billing cycle.
6.7 Cancellation requests should be sent to firstname.lastname@example.org and a support ticket should also be raised.
6.8 This Licence is effective until terminated by either party. You may terminate this Licence after having provided at least 30 days termination notice and by destroying or returning to SC Limited all copies of the Software in your possession. SC Limited may terminate this Licence for any reason, including but not limited to your breach of any of the terms of this Licence.
6.9 The Licensor may terminate this Licence immediately by written notice to you if:
(a) You commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so; or
(b) A petition for a bankruptcy order to be made against you has been presented to the court; or
(c) The Licensee (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986).
6.10 Upon termination for any reason:
(a) All rights granted to you under this Licence shall cease;
(b) You must cease all activities authorised by this Licence;
(c) You must immediately pay to the Licensor any sums due to the Licensor under this Licence; and
(d) You must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.
7. TRANSFER OF RIGHTS AND OBLIGATIONS
7.1 This Licence is binding on you and us and on our respective successors and assigns.
7.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
7.3 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.
All notices given by you to the Licensor must be given to SC Limited of The Old Royal Mail Sorting Office, Stokes Road, Corsham, Wiltshire. SN13 9BE. The Licensor may give notice to you at either the e-mail or postal address you provided to when purchasing the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email that such e-mail was sent to the specified e-mail address of the addressee.
9. EVENTS OUTSIDE THE LICENSOR'S CONTROL
9.1 The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Licence that is caused by an event outside his reasonable control (Force Majeure Event).
9.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) Strikes, lock-outs or other industrial action;
(b) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) Impossibility of the use of public or private telecommunications networks;
(f) The acts, decrees, legislation, regulations or restrictions of any government.
9.3 The Licensor's performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and he will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
10.1 If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
10.2 A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
10.3 No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
11.1 We may, from time to time change any part of this Agreement and will post such changes to our website (www.worldbackups.net/tos ).
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such 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.
13. ENTIRE AGREEMENT
13.1 This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
13.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
13.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Licence.
14. LAW AND JURISDICTION
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.