Terms & Conditions
STANDARD TERMS OF BUSINESS
1.1 In the Contract (as defined below), the following words and phrases have the following respective meanings:
Buyer: means the person, specified in the Transaction Details, to whom the Licences are to be assigned;
Company: means either JJH Enterprises Limited, a company incorporated and registered under the laws of England and Wales with registered number 06647308, trading as “ValueLicensing” or ValueLicensing EU BVBA, a company incorporated and registered under the laws of Belgium as specified in the Transaction Details;
Contract: means any contract between the Supplier and the Buyer for the assignment of the Licences, incorporating these terms and the Transaction Details;
Contract Price: means the full price payable by the Buyer in consideration of the assignment of the Licences, as specified in the Transaction Details;
Licences: means the software licences, specified in the Transaction Details, to be assigned to the Buyer;
Licensed Software: means Software which is subject to a Licence;
Stockholding Fee: means the sum of £500 (Five hundred pounds) or such other sum as the Supplier may notify to the Customer from time to time;
(1) Where the Company is assigning the Licences to the Buyer, the Company (in which event the Company will be named as the Supplier in the Transaction Details); or
(2) Where the Company brokering the assignment of the Licences to the Buyer, the person named as the Assignor in the Transaction Details, acting through the Company, its agent; and
Transaction Details: means the details of the assignment of the Licences, as more particularly set out in any applicable quotation, confirmation of order or in any other document agreed between the Supplier and the Buyer.
1.2 The headings contained in these Terms are for convenience of reference only and shall not affect their interpretation or construction.
1.3 Unless the context otherwise requires words in these Terms denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to persons shall include natural persons, bodies corporate, unincorporated associations, governments, states, trusts and partnerships, in each case whether or not having a separate legal personality.
1.4 The words and phrases “including” and “in particular”, where used in these Terms, shall be without prejudice to the generality of any preceding words, and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible.
1.5 Any reference in these Terms to “writing” or “written” includes faxes but does not include writing on the screen of a visual display unit or e-mail.
1.6 References in these Terms to any statute, enactment, order, regulation or other similar instrument shall be construed as references to it as amended by or as contained in any subsequent re-enactment, modification or statutory extension thereof.
1.7 References in these Terms to Clauses are references to Clauses in these Terms.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Clause 2.2 the Contract shall be governed by these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply at any time under any purchase order, order confirmation, specification or other document). No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, order confirmation, specification or other document shall form part of the Contract solely as a consequence of such document being referred to in the Contract.
2.2 These Terms apply to all sales of Licences made by the Supplier to the Buyer and no variation to these Terms shall have any effect unless expressly agreed in writing and signed by a director of the Supplier or of Company, where the Company is acting as the Supplier’s agent.
2.3 Each order for Licences placed by the Buyer with the Supplier, and each acceptance by the Buyer of a quotation for Licences by the Buyer from the Supplier shall be deemed to be an offer by the Buyer to buy Licences subject to these Terms.
2.4 No order placed by the Buyer shall be deemed to be accepted by the Supplier until a written acknowledgement of order is issued by the Supplier or (if earlier) the Supplier delivers the Licences to the Buyer.
2.5 Any quotation is given on the basis that no contract shall come into existence until the Supplier despatches an acknowledgement of order to the Buyer or (if earlier) the Supplier delivers the Licences to the Buyer. Any quotation is valid and open for acceptance for a period of thirty (30) days only from its date, provided that the Supplier has not previously withdrawn it.
2.6 The Customer shall be entitled to cancel any Order, and thereby terminate the Contract, by giving notice of termination to the Supplier at any time on or before the seventh day after the delivery of the Licences in accordance with Clause 3.3. In the event of such cancellation the Customer shall pay to the Supplier the Restocking Fee, in consideration of the work required to be performed by the Supplier in order to return the Licences which are the subject of the cancellation to its stockholding. The Supplier shall be entitled to submit an invoice for the Restocking Fee immediately upon receipt of notice of cancellation from the Customer and the provisions of Clauses 7.2, 7.5, 7.6, 7.7 and 7.8 shall apply to the payment of the Restocking Fee.
2.7 Any descriptions, descriptive matter, specifications or advertising issued by the Supplier are issued or published for the sole purpose of giving an approximate understanding as to the nature of the Licences described in them. They shall not form part of the Contract, or of any other contract between the Supplier and the Buyer.
3.1 Unless otherwise agreed in writing by the Supplier, delivery of the Licences shall take place at the Supplier’s place of business.
3.2 Any dates specified by the Supplier for delivery of the Licences are intended to be an estimate and time for delivery shall not be made of the essence. If no dates are so specified, delivery shall be made within a reasonable time.
3.3 The Supplier shall notify the Customer when the Licensed Software is available to download. The making available of the Licensed Software for downloading by the Customer shall constitute “delivery” for the purposes of the Contract.
3.4 The Supplier may deliver the Licensed Software by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be the subject of a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
3.5 The Supplier shall not be liable for any non-delivery of Licensed Software (even if caused by the wrongful act or omission of the Supplier) unless the Buyer gives written notice to the Supplier of the non-delivery within seven (7) days of the date on which the Supplier notifies the Customer that the Licensed Software is available for downloading pursuant to Clause 3.3.
3.6 If no time for delivery is specified in the Contract, the Buyer shall be bound to take delivery of the Licensed Software when it is ready for delivery by the Supplier and the Supplier has notified the Buyer accordingly. Delivery shall be deemed to have taken place when the Supplier has provided to the Buyer written details of the Licensed Software and any other relevant information reasonably required for the Buyer use the Licensed Software.
3.7 The Licensed Software will be delivered to the Buyer stored on compact disc or such alternative media as may be agreed between the parties. Risk of damage to or loss of the Licensed Software or the said media shall pass to the Buyer at the time of delivery or, if the Buyer fails to take delivery of the Products, at the time when the Supplier has tendered delivery of the Products.
3.8 The Supplier shall have no responsibility for the installation of the Licensed Software onto any processor, nor to provide any support or advice of any kind to the Customer in relation to such installation. Installation of the Licensed Software is, as between the Supplier and the Customer, entirely the responsibility of the Customer, and the Supplier shall have no liability of any kind, however arising, resulting from any defective performance or non-performance of the Licensed Software resulting from its installation.
4. ASSIGNMENT OF LICENCES
4.1 The Buyer acknowledges and agrees that:
4.1.1 the terms of all Licences have been disclosed to the Buyer, who is deemed to take such assignment with full knowledge thereof; and
4.1.2 the assignment to the Buyer of each Licence will be subject to and in accordance with the terms of that Licence and to all restrictions on use stipulated by the Licensor of the Licensed Software.
4.2 The Buyer shall at all times use Licensed Software only in accordance with the terms of the relevant Licence.
4.3 No assignment to the Buyer of any Licence shall be deemed to be effective unless and until all sums payable by the Buyer in respect of the Licences has been credited to the relevant bank account of either the Supplier or, where the Company is acting as the Supplier’s agent, the Company, in cleared funds or in cash.
5.1 Neither party shall, without the authority of the other, disclose to any third party any information concerning the products, services, customers, business, contractual arrangements (including the existence or terms of the Contract) or other dealings, transactions or affairs of the other or of the other party’s affiliated entities which may come to that party’s knowledge in the course of performing its obligations under or as a result of the parties having entered into the Contract, provided that nothing in this Clause 5 shall prevent either party from disclosing that information.
5.1.1. to any government department or other authority, court or arbitrator having statutory authority or jurisdiction to require the disclosure of that information; or
5.1.2. to the extent that any such information enters the public domain through no act or default of the recipient of the information; or
5.1.3 to the extent that the information in question was already known to the recipient and at its free disposal; or
5.1.4 to the extent that the information in question is received by the recipient from a third party lawfully entitled to decide the same without any obligation of confidentiality being imposed upon the recipient in respect thereof.
5.2 Notwithstanding the termination or expiry of the Contract for whatever reason, the obligations and restrictions in this Clause 5 shall be valid in respect of each item of information received for a period of five (5) years from the date of receipt of the information in question.
6.1 The Supplier will be entitled to terminate the Contract with immediate effect by giving notice to the Buyer if the Buyer:
6.1.1 fails to pay when due any sum payable under the Contract or commits any other material breach of the Contract and, in the case of a breach capable of remedy, fails to remedy the breach within fourteen (14) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
6.1.2 has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer, or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer or any analogous event should occur with respect to the Buyer in any territory to whose jurisdiction the Buyer may be subject; or
6.1.3 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his property or obtained against him, or fails to observe or perform any of his obligations under the Contract or any other contract between the Supplier and the Buyer, or is unable to pay his debts within the meaning of section 123 of the Insolvency Act 1986; or
6.1.4 the Buyer ceases or threatens to cease to carry on or, in the reasonable opinion of the Supplier is likely to cease to carry on, the whole or a significant part of its business; or
6.1.5 any event, matter or circumstance reasonably analogous to any of those set out in Clauses 6.1.2 to 6.1.4 arises or occurs in any territory to whose jurisdiction the Buyer is subject.
6.2 On termination of the Contract the Buyer shall:
6.2.1 forfeit any deposit or other sum previously paid to the Supplier in respect of the Licences which are the subject of the Contract;
6.2.2 cease immediately to make any use of the Licences which are the subject of the Contract; and
6.2.3 promptly return to the Supplier all media on which the Licensed Software, or any copies of the Licensed Software made by or for the Buyer, are stored; and
6.2.4 to the fullest extent possible, promptly delete or erase or procure the deletion or erasing of all copies of the Licensed Software stored or loaded onto any processor.
6.3 On termination of the Contract, the Supplier shall immediately be discharged from any further performance of the Contract.
6.4 Termination of the Contract shall not limit or exclude any accrued right or remedy of the Supplier, howsoever arising.
7. PRICE AND PAYMENT
7.1 The Contract Price shall be the price set out in the Transaction Details, excluding any Value Added Tax, which will be payable by the Buyer in addition at the rate and in the manner prescribed by law.
7.2 Subject to Clause 7.4, payment of the Contract Price is due in pounds sterling or such other currency as may be specified in the Transaction Details within 7 days of delivery.
7.3 The Supplier will submit its invoice for the Licences to the Buyer’s address specified for that purpose in the Transaction Details.
7.4 Time for payment shall be of the essence.
7.5 No payment shall be deemed to have been received until the Supplier has received cleared funds.
7.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.7 If the Buyer fails to pay the Supplier any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the rate prescribed from time to time by the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis until payment is made, whether before or after any judgment.
7.8.1 the Buyer fails to pay the Supplier any sum due pursuant to the Contract; or
7.8.2. the Supplier has reasonable grounds to believe that the Buyer may become subject to any of the events in Clauses 6.1.2, to 6.1.5, the Supplier will be entitled to refuse any or any further assignment of the Licences to the Buyer unless payment is made in advance by means of cash or some other form of payment reasonably satisfactory to the Supplier, or some form of security for payment acceptable to the Supplier is provided by the Buyer.
8. WARRANTY, DISCLAIMER AND INDEMNITY
8.1 The Supplier warrants that it has full authority, power and capacity to enter into the Contract, and that all necessary actions have been taken to enable it lawfully to do so.
8.2 Save as expressly provided by Clause 8.1 and subject to Clause 8.3, no representations, conditions, warranties or other terms of any kind are given by the Supplier in respect of the Licences, and all statutory warranties and conditions are excluded from the Contract to the fullest extent permitted by law.
8.3 The Supplier shall fully indemnify the Buyer and keep the Buyer fully indemnified from and against any and all actions, claims, demands, costs, losses, expenses, damages and liability suffered or incurred by the Buyer and arising as the result of any claim by a third party that the use by the Buyer of the Licensed Software infringes the intellectual property rights of that third party (a “third party claim”), except to the extent that the third party claim arises as the result of any breach by the Buyer of the terms of the relevant Licence. The entitlement of the Buyer to this indemnity is conditional upon the Buyer giving the Supplier full and absolute control of the defence or settlement of the third party claim (such defence or settlement to be conducted at the Supplier’s expense and in the name of the Buyer), and in particular to the Buyer not directly or indirectly making any admission of liability or making any attempt to defend or settle the third party claim.
8.4 The Buyer shall fully indemnify the Company, its officers and employees and keep them fully indemnified from and against all and any actions, claims, demands, costs, losses, expenses, damages and liability suffered or incurred by any of them and in any way arising out of the use by the Buyer or any third party of the Licensed Software.
8.5 Where the Company is acting as broker for a sale of Licences on behalf of a Supplier who is an Insolvency Practitioner or government entity acting as an Office Holder under the Insolvency Act 1986 (as amended) or in any equivalent or analogous capacity in any other jurisdiction:–
8.5.1 the Supplier shall be under no personal liability whatsoever in respect of the contract for sale of the Licences; and
8.5.2 the Supplier shall sell only whatever right, title or interest the relevant company and/or government entity may have in the Licences.
9. LIMITATION OF LIABILITY
9.1 Nothing in these conditions excludes or limits the liability of the Supplier or the Company:-
9.1.1 for death or personal injury caused by the negligence of the Supplier or the Company; or
9.1.2 under section 2(3) of the Consumer Protection Act 1987; or
9.1.3 for any matter for which the Supplier or the Company (as the case may be) is unable to exclude or attempt to exclude its liability under applicable law.
9.2 Subject to Clause 9.1:
9.2.1 the total aggregate liability of the Supplier and the Company in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
9.2.2 neither the Supplier nor the Company shall be liable to the Buyer for loss of profit, loss of business or of business opportunity, loss of revenue or depletion of goodwill or for any kind of economic, indirect or consequential loss whatsoever (howsoever caused) arising in any way out of or in connection with the Contract.
10. FORCE MAJEURE
Neither the Supplier nor the Company shall be liable for any delay or failure in performing any obligation under the Contract and each reserves the right to defer the date of delivery or to cancel the Contract, or to reduce the number of the Licences assigned to the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to any event, matter or circumstances beyond its reasonable control. Provided that, if the event, matter or circumstances in question continue for a continuous period in excess of thirty (30) days, the Buyer shall be entitled to terminate the Contract with immediate effect by giving notice to the Supplier.
11.1 Any notice or communication between the parties under or in connection with the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Transaction Details, or such other address as may have been notified by that party from time to time for such purposes.
11.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am local time on the first business day (at the address to which it is delivered) following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received on the second business day (at the address to which it is delivered).
12.1 The Contract shall constitute the entire agreement between the parties in relation to its subject matter, and supersedes all prior promises, representations, statement and warranties given by either party to the other, of any kind and whether written, oral, communicated electronically or otherwise, in relation to such subject matter. Each party acknowledges that it has not entered into the Contract in reliance on any promise, representation, statement or warranty that has not been incorporated into the Contract by way of express provision. Nothing in the Contract shall exclude or limit the liability of either party for fraudulent misrepresentation.
12.2 The Supplier may assign the Contract or any part of it to any person. The Buyer shall not be entitled to assign or transfer the Contract or any part of it without the prior written consent of the Supplier.
12.3 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
12.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to that extent be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
12.5 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
12.6 Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
12.7 No term of the Contract shall be enforceable, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise, by any person that is not a party to it, provided that:-
12.7.1 the limitations on the liability of the Supplier set out in Clause 9 shall be enforceable by the Company; and
12.7.2 where the Company is brokering the assignment of the Licences to the Buyer, nothing in this Clause 9 shall prevent the Company from enforcing this Agreement as the agent of the Supplier.
12.8 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the non-exclusive jurisdiction of the English Courts.