Galleria-rts | contact

DATE: dd/mm/yr

(1) “The Company”	Galleria Retail Technology Solutions Ltd (registered in England under company no. 3522094) whose registered office is at Brundrett House, 19 Sandbach Road South, Alsager, Cheshire, ST7 2LT, England.

(2) “The Licensee”	xxxxx (registered in xxxx under company no xxx) whose registered office is at xxxx

RECITALS:

(A) The Company is the proprietor of certain computer software known as xxxxx

(B) The Company has agreed to sub-license such software and documentation and provide support services to the Licensee on the terms and conditions hereinafter contained.

OPERATIVE PROVISIONS:

1. Definitions

In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Acceptance” means the Licensee’s acceptance of the Licensed Programs pursuant to Clause 4.2

“Designated Processors” means the computer processors designated by type and serial number in the Schedule hereto

“Designated System” means the Licensee’s computer system comprising the Designated Processors and the peripheral equipment listed in the Schedule

“Intellectual property rights” means patents, trade marks, service marks, registered designs, applications for any of the foregoing, copyright, design rights, trade and business names and other similar protected rights in any country

“Licensed Programs” means the applications computer programs detailed in the Schedule in object code form including any modified, enhanced or replacement versions thereof or additions thereto which may be supplied by the Company to the Licensee from time to time

“Licensed Program Materials” means the Licensed Programs, the Program Documentation and the Media

“Licence” means the licence to Use the Licensed Program Materials granted hereunder

“Media” means the media on which the Licensed Programs and the Program Documentation are recorded or printed as provided to the Licensee by the Company

“Product Description” means the product description of the Licensed Programs describing the functions and facilities thereof as supplied to the Licensee by the Company

“Program Documentation” means the operating manuals, user instructions, technical literature and other related materials supplied to the Licensee by the Company for aiding the use and application of the Licensed Programs

“Recommended Equipment” means any computer equipment that the Company may recommend for use with the Licensed Programs from time to time

“Support Period” means the period during which the Support Services shall be provided determined in accordance with Clause 6.5

“Support Services” means the software support services to be provided by the Company pursuant to Clause 6.1

“Term” means the period of 10 years from the date hereof

“User” means any employee of the Licensee accessing the Licensed Programs from a single processor keyboard terminal or peripheral device

“Use the Licensed Programs” means to load the object code form of the Licensed Programs into and store and run them on the Designated Processors in accordance with the terms of this Agreement

“Use the Licensed Program Materials” means to Use the Licensed Programs, to read and possess the Program Documentation in conjunction with the use of the Licensed Programs and to possess the Media

2. Services to be provided

The Company hereby agrees to:

2.1 Deliver the Licensed Programs to the Licensee and to install them on the Designated Processors.

2.2 License the Licensee to Use the Licensed Program Materials.

2.3 Provide training in the use of the Licensed Programs for the staff of the Licensee; and

2.5 Provide software support services to the Licensee in respect of the Licensed Programs,

In each case upon the terms and conditions hereinafter contained.

3 Licence

3.1 The Company hereby grants to the Licensee a non-exclusive and non-transferable licence to Use the Licensed Program Materials for the Term subject to the terms and conditions hereinafter contained.

3.2 The Licensee hereby acknowledges that it is licensed to Use the Licensed Program Materials in accordance with the express terms of this Agreement but not further or otherwise.

3.3 In consideration of the grant of the Licence, the Licensee shall pay to the Company the single licence fee specified in the Schedule in accordance with the payment terms set out therein.

3.4 The Licensed Program Materials (and the intellectual property rights therein or relating thereto) are and shall remain the property of the Owner.

3.5 The Licensee shall Use the Licensed Program Materials for processing its own data for its own internal purposes only. The Licensee shall not permit any third party to use the Licensed Program Materials in any way whatever nor use the Licensed Program Materials on behalf of or for the benefit of any third party in any way whatever (including, without limitation, using the Licensed Program Materials for the purpose of operating a bureau service).

3.6 The Licensee shall treat the Licensed Program Materials as strictly confidential and shall not divulge the whole or any part thereof to any third party. The Licensee shall ensure that its employees comply with such confidentiality and non-disclosure obligations.

3.7 The Licensee shall keep exclusive possession of and control over the copies of the Licensed Program Materials in its possession and shall effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person. The Licensee undertakes to comply with and perform its obligations under this Agreement fully and promptly so as not to infringe the rights of the Company in respect of the Software Materials.

3.8 The Licensee shall not without the prior written consent of the Company use the Licensed Program Materials at any location other than the installation address specified in the Schedule.

3.9 Except to the extent and in the circumstances expressly required to be permitted by law, the Licensee shall not alter, modify, adapt or translate the whole or any part of the Licensed Program Materials in any way whatever nor permit the whole or any part of the Licensed Programs to be combined with or to become incorporated in any other programs nor to decompile, disassemble or reverse engineer the Licensed Programs or any part thereof nor attempt to do any of such things. To the extent that local law grants to the Licensee the right to decompile the Licensed Programs in order to obtain information necessary to render the Licensed Programs interoperable with other computer programs used by the Licensee, the Company shall use all reasonable endeavours to procure that the Owner makes that information readily available to the Licensee, on the basis that the Owner shall have the right to impose reasonable conditions such as a reasonable fee for doing so. In order to ensure that the Licensee receives the appropriate information, the Licensee must first give the Owner sufficient details of the Licensee’s objectives and the other software concerned.

3.10 The Company shall supply the number of copies of the Licensed Programs and Program Documentation specified in the Schedule. In addition, the Licensee may make up to 3 copies of the Licensed Programs for operational security and back-up purposes but shall make no other copies thereof. All copies and the media on which they are stored shall be the property of the Owner and the Licensee shall ensure that all such copies bear the same proprietary notices as the original. The provisions of this Agreement shall apply to all such copies as they apply to the originals. No copies may be made of the Program Documentation without the prior written consent of the Owner.

3.11 The Company shall be entitled to terminate the Licence forthwith by notice in writing to the Licensee if the Licensee shall commit any breach of the terms of this Agreement or shall become insolvent or shall have a liquidator, receiver, administrator or administrative receiver appointed or if the Licensee permanently ceases to use the Licensed Program Materials.

3.11.1 Upon such termination the Licensee shall return the Licensed Program Materials and all copies thereof to the Company or, at the option of the Company, shall destroy the same and certify to the Company that they have been so destroyed. The Licensee shall also cause the Licensed Programs to be erased from the Designated Processors and shall certify to the Company that the same has been done.

3.12 The use of the Licensed Program Materials is restricted to use on the Designated Processors save that:

3.12.1 if the Licensed Program Materials cannot be used on any one Designated Processor because it is inoperable for any reason then the Licence shall be temporarily extended without additional charge to use on a single back-up or substitute processor (which is Recommended Equipment) until the Designated Processor is operable again, provided such substitute processor is under the direct control of the Licensee; and/or

3.12.2 the Licensee may use the Licensed Program Materials on and in conjunction with a single replacement processor (which is Recommended Equipment) if the use of the Licensed Program Materials on and in conjunction with any one Designated Processor is permanently discontinued. Upon such discontinuance the Licensee shall forthwith give the Company written notice of the type and serial number of the replacement processor whereupon the replacement processor shall become a Designated Processor for all the purposes of the Licence.

3.13 The Licence is limited to the use of the Licensed Program Materials with the Designated System and by the maximum number of concurrent Users specified in the Schedule. The Licensee acknowledges that an additional licence fee is payable for each additional processor on which the Licensed Programs are to be used or additional concurrent User that is to have access to the Licensed Programs.

3.14 Risk in the Media shall pass to the Licensee on delivery of the same to the Licensee. If any part of the Media shall thereafter be lost, destroyed or damaged the Company shall replace the same (embodying the relevant part of the Licensed Programs or Program Documentation) subject to the Licensee paying the Company’s standard charge for replacement.

3.15 In the event that any enhancement or modification of the Licensed Program Materials is made or evolves in the performance of or as a result of this Agreement the Licensee agrees that the same (and all intellectual property rights therein) shall be the exclusive property of the Owner unless otherwise agreed in writing by the Owner.

3.16 The Company warrants to the Licensee that the Licensed Programs, when delivered to the Licensee, shall provide the facilities and functions described in the Product Description and the Program Documentation. The Licensee acknowledges that the Licensed Programs are of such complexity that they may have certain defects when delivered, and the Licensee agrees that the Company’s sole liability and the Licensee’s sole remedy in respect of a defect shall be for the Company to provide correction of documented program errors which the Company’s investigation indicates are caused by a defect in an unaltered version of the Licensed Programs, and are not due to a defect or deficiency in, or a failure of, the equipment upon which the Licensed Programs are operated or hardware or software not recommended or approved by the Company, or incorrect handling or employment of the Licensed Programs by the Licensee. All warranties hereunder extend only to the Licensee and are for the benefit only of the Licensee. The Company’s obligation to correct any such program errors shall cease at the end of the Support Period.

3.16.1 for the avoidance of doubt the Company makes no warranties or representations concerning the computer equipment used in conjunction with the Licensed Program Materials.

3.17 The Company shall indemnify the Licensee against any claim that the normal use or possession of the Licensed Program Materials infringes the intellectual property rights of any unaffiliated third party provided that the Company is given immediate and complete control of such claim, that the Licensee does not prejudice the Company’s defence of such claim, that the Licensee gives the Company all reasonable assistance with such claim (at the Company’s expense) and that the claim does not arise as a result of the use of the Licensed Program Materials otherwise than in accordance with the terms of this Agreement or in combination with any equipment (other than the Designated System) or programs not supplied or approved by the Company. The Company shall have the right to replace or change all or any part of the Licensed Program Materials in order to avoid any infringement.
The foregoing states the entire liability of the Company to the Licensee in respect of the infringement of the intellectual property rights of any unaffiliated third party.

3.18 The Licensee shall notify the Company if the Licensee becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person.

3.19 The Licensee will permit the Company to check the use of the Licensed Program Materials by the Licensee at all reasonable times and for that purpose and the purpose of verifying the discharge of the Licensee’s obligations under Clause 3.11 the Company shall be entitled to enter any of the Licensee’s premises (and so that the Licensee hereby irrevocably licenses the Company, its employees and agents to enter any such premises for any such purpose).

4 Installation and acceptance

4.1 The Company shall deliver the Licensed Programs to the Licensee and install them on the Designated Processors at a time mutually convenient to both parties. The Licensee shall pay to the Company the delivery and installation charge specified in the Schedule on the payment terms set out therein.

4.2 The Licensed Programs are deemed to be accepted, when they have been installed and the Company has successfully carried out appropriate acceptance tests and the Licensee has accepted the same. The Licensee shall not unreasonably withhold such acceptance.

5 Training
Upon request, the Company undertakes to provide training in the use of the Licensed Programs for the staff of the Licensee either at the Company’s premises or the Licensee’s premises in accordance with the Company’s standard scale of charges in force from time to time.

6 Support Services
6.1 Subject to compliance by the Licensee with its obligations under Clause 6.2, the Company shall during the Support Period:

6.1.1 use its reasonable endeavours to correct any faults in the Licensed Programs notified to it by the Licensee (but shall not be required to recover or reconstruct the Licensee’s own computer records corrupted or lost as a result of such faults);

6.1.2 deliver to the Licensee from time to time and install such new versions of the Licensed Programs for general release to licensees from time to time and which are compatible with the Licensee’s version.

6.1.3 provide the Licensee with all documentation which the Company reasonably deems necessary for the utilisation of any modified, enhanced or replacement versions of or additions to the Licensed Programs delivered to the Licensee by the Company from time to time;

6.1.4 provide the Licensee with remote telephone diagnostic assistance during the hours specified in the Schedule to help resolve the Licensee’s difficulties and queries in using the current version of the Licensed Programs; Provided that the Licensee has first successfully completed a training course in accordance with the Company’s current minimum recommendations. The Company shall only be obliged to provide telephone assistance to those of the Licensee’s staff who have attended the requisite training courses; and

6.1.5 make visits to the Licensee’s premises at the reasonable request of the Licensee to test the functions of the Licensed Programs (such requests not to exceed 2 in any twelve month period) and make such adjustments and amendments as shall be reasonably necessary to ensure that the Licensed Programs continue to operate correctly.

6.2 The Licensee shall:

6.2.1 use only the current version of the Licensed Programs made available to it from time to time by the Company;

6.2.2 ensure that competent trained employees use the Licensed Programs on the Designated Equipment in a proper manner only or by persons under their supervision;

6.2.3 notify each software fault to the Company as it arises and shall supply the Company with a documented example of such fault;

6.2.4 co-operate fully with the Company in diagnosing any software fault;

6.2.5 make available to the Company free of charge all reasonable facilities and services which are required by the Company to enable it to provide the Support Services including, without limitation, computer runs, memory dumps, telecommunications facilities, printouts, data preparation, office accommodation, typing and photocopying;

6.2.6 not request, permit or authorise anyone other than the Company or the Owner or the Owner’s authorised representatives to provide any support services in respect of the Licensed Programs; and

6.2.7 keep full security copies of the Licensed Programs and of the Licensee’s data and other computer programs it uses in accordance with best computing practice.

6.3 The Support Services do not include:

6.3.1 attendance to faults caused by using the Licensed Programs otherwise than in accordance with the Program Documentation;

6.3.2 support or maintenance of software, accessories, attachments, computer hardware, systems or other devices not supplied by the Company;

6.3.3 diagnosis or rectification of problems not attributable to the Licensed Programs; or

6.3.4 loss or damage caused directly or indirectly by operator error or omission,

and any service, which is provided by the Company as a result of any of the foregoing, shall be charged extra at the Company’s standard rates in force from time to time.

6.4 In consideration of the provision of the Support Services, the Licensee shall pay the annual support charge specified in the Schedule. The first such charge shall be paid on the date specified in the Schedule and then annually in advance on each subsequent anniversary. Interest shall accrue on any later payments at the rate of 4 per cent above the base rate for the time being of the Barclays Bank PLC, and the Company reserves the right to suspend the provision of the Support Services while the Licensee is in default of its payment obligations.

6.4.1 The Company shall be entitled at any time and from time to time after the payment of the first support charge to make reasonable increases thereto to accord with any change in the Company’s standard scale of charges by giving to the Licensee not less than 30 days’ written notice expiring on the date for payment of the next annual support charge, such increase not to exceed the increase in the UK Retail Prices Index (all indices) over the same period.

6.5 The Support Period shall commence on the date of the Agreement, shall continue for an initial period of one year and shall remain in force thereafter unless and until terminated by either party giving to the other not less than 12 months’ written notice of termination expiring on the last day of the said initial period or on any subsequent anniversary of such day, but shall automatically terminate on the termination of the Licence. No refund of any part of the annual support charge shall be made on termination of the Support Services.

7 Assignment

This Agreement is personal to the Licensee and the Licensee shall not assign, sub-license or otherwise transfer this Agreement or any of its rights or obligations hereunder whether in whole or in part.

8 Force majeure
No party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations.

9 Liability
9.1 The Company shall not be liable for any loss or damage sustained or incurred by the Licensee or any third party resulting from any defect or error in the Licensed Programs except to the extent that such loss or damage arises from any unreasonable delay by the Company in providing the Support Services.

9.2 The Company shall not be responsible for the maintenance, accuracy or good running of any version of the Licensed Programs except the latest version thereof supplied to the Licensee from time to time.

9.3 Notwithstanding anything else contained in this Agreement but subject to Clause 9.4 below, the Company shall not be liable to the Licensee for loss of profits, business or anticipated savings or for any indirect or consequential loss or damage whatsoever even if the Company shall have been advised of the possibility thereof and whether arising from negligence, breach of contract or howsoever.

9.4 The Company does not exclude liability for death or personal injury caused by the Company’s negligence.

9.5 Where the Company is liable to the Licensee for negligence, breach of contract or any other cause of action arising out of this Agreement such liability shall not exceed a sum equal to the licence fee (exclusive of VAT or similar local sales tax if applicable) referred to in Clause 3.3.

9.6 The Company will not be liable for any loss arising out of any failure by the Licensee to keep full and up-to-date security copies of its data and the computer programs it uses in accordance with best computing practice.

9.7 The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.

10 General

10.1 This Agreement constitutes the entire understanding between the parties concerning the subject matter of this Agreement and the Licensee warrants to the Company that in entering into this Agreement it has not relied on any warranty, representation or undertaking save as expressly set out in this Agreement (save that neither party seeks to exclude liability for any fraudulent pre contractual misrepresentation upon which the other party can be shown to have relied). No waiver or amendment of any provision of this Agreement shall be effective unless made by a written instrument signed by all the parties. Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.

10.2 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.

10.3 All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address in England as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when despatched

10.4 If any sum payable under this Agreement is not paid within 7 days after the due date then (without prejudice to the Company’s other rights and remedies) the Company reserves the right to suspend the provision of any services being rendered to the Licensee and/or to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 4 per cent above the base rate of Barclays Bank plc from time to time in force compounded quarterly. Such interest shall be paid on demand by the Licensee upon demand of the Company.

10.5 Save as expressly provided herein, all payments shall be made within 30 days after the date of the Company’s invoice therefor.

10.6 All sums payable under this Agreement are exclusive of Value Added Tax (if applicable) and all other local taxes, which the Licensee shall be additionally liable to pay to the Company.

10.7 In this Agreement:

10.7.1 words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;

10.7.2 any reference to a party to this Agreement includes a reference to his successors in title and permitted assigns;

10.7.3 the headings to the Clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

10.8 This Agreement shall be governed by and construed in accordance with the laws of England and the parties agree that any dispute relating to its terms or subject matter shall be subject to the exclusive jurisdiction of the English courts.

EXECUTED under hand in two originals the day and year first before written

SIGNED by a duly authorised Officer on behalf of the LICENSEE, XXXX

Signature:

Name (PRINT): Title:

Date:

Witness Signature:

Witness Name (PRINT): Title:

SIGNED by a duly authorised Officer on behalf of LICENSOR, Galleria Retail Technology Solutions Ltd.