CLARITY PRO SOFTWARE LICENCE
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE:
This licence agreement (“Licence”) is a legal agreement between Clarity Software Group Ltd a company registered in England & Wales under no. 02430509 whose registered office is at 7 The Pavilions, Cranmore Drive, Shirley, Solihull, West Midlands, B90 4SB, United Kingdom (“we/us/our”) and the sole trader, partnership or company who wishes to install and use the Software on the following terms (“you/your”).
You should print a copy of this Licence for future reference.
IMPORTANT NOTICE TO ALL USERS:
Please note that these terms include important exclusions of liability.
In this Licence the following terms have the following meanings:
Compatiblehaving the recommended operating system and hardware configuration as stated in the Documentation;Data Protection Legislation
the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and, for so long as it is effective in the UK, the General Data Protection Regulation;
any laws which implement any of the foregoing; and
any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Deviceany device on which the Software is used;Documentationany explanatory or written materials (whether printed or electronic) and any modification or addition to such materials as we may provide from time to time; Groupin relation to you, any other body corporate which is your holding company or subsidiary and any other body corporate which is a subsidiary of your holding company (and “holding company” and “subsidiary” shall have the meaning given to them by section 1159 Companies Act 2006);Licence Termthe term commencing on the date of installation of the Software for the period specified in the Quotation;Quotationa quotation or proposal document issued by us in respect of the Software incorporating the terms of this Licence; Softwarethe computer software that we provide as indicated in the Quotation, any associated media on which such computer software may be provided to you and any associated materials (whether printed or electronic) including the Documentation which may be provided to you relating to such computer software; Updatesany free supplementary software code or updates, additions or modifications of the Software incorporating “patches” and corrections of errors as we may provide from time to time; Usersyour employees and representatives who access and use the Software through a User Account;User Accountan account allocated by you to a single designated employee or representative;Warrantythe warranty given in clause 8;Warranty Periodhas the meaning given in clause 8.1;
Any words following the terms “include”, “includes”, “including”, “for example”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
GRANT AND SCOPE OF LICENCE
We license use of the Software to you on the basis of this Licence. We do not sell the Software to you. We remain the owners of the Software at all times, as more particularly detailed in clause 6.
In consideration of you abiding by the terms of this Licence and the payment of the licence fee, we grant to you a limited, non-exclusive, non-transferable, non-sub-licensable, revocable licence to install and use the Software (in object code form only) for the Licence Term in a manner consistent with the terms of this Licence and the Documentation.
install and use the Software for your internal business purposes only (but not other entities that form part of the Group unless expressly listed in the Quotation, and then only to the extent they remain a part of the Group);
receive and use any Updates.
You may make backup copies of the Software as may be reasonably necessary for your lawful use. This Licence shall apply to all backup copies of the Software as it applies to the Software.
You may not use any outsourcing or facilities management services provided by third parties to manage the Software without our prior written consent and where permitted, ensure that such third parties only manage the Software for your internal business purposes.
We may agree to provide you with support services (including installation and/or technical support) in relation to the Software. Any such support services will be subject to additional terms and conditions and will be subject to an additional fee. We will only provide support services in relation to those versions of the Software listed on our website at www.clarity-software.com.
USE OF THE SOFTWARE
You agree to install the Software in accordance with our instructions and acknowledge that we shall not be responsible for any data and/or programs that may be lost, damaged or destroyed as a result of incorrect installation and that you shall be responsible for reconstruction, replacement, repair or recreation of lost data or programs.
Before installing the Software and/or Updates and at such regular intervals throughout the Licence Term as may be reasonable depending on your use of the Software you shall back-up your system (including drivers, software programs, data, media, folders and files).
prevent unauthorised access to, or use of the, Software;
supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with this Licence; and
comply with all applicable laws and regulations with respect to your activities under the Licence including in relation to your use of the Software and the data that you upload to or transmit from the Software.
The number of User Accounts is limited to the number indicated in the Quotation. You shall ensure that each User Account is used by a single designated User and that User does not share their User Account access details with anyone else.
You shall be solely responsible for any third party (which shall include your employees) accessing or using the Software through your user access information for your User Accounts.
You shall be responsible for keeping any user access information for your User Accounts secure and confidential and you shall be solely responsible for any unauthorised access to your User Accounts and/or the Application resulting from a breach of this clause 3.6.
You shall not:
send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
send or store unlawful, infringing, offensive, obscene, discriminatory, threatening or otherwise unlawful, immoral or tortious material; or
send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
Except as expressly set out in this Licence or as permitted by any local law, you undertake:
not to copy (except as expressly permitted by this Licence) the Software;
not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
not to make alterations to, or modifications of, the whole or any part of the Software;
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 nor to assist any third party to do any such things save to the extent that that local law grants you the right to decompile software in order to obtain information necessary to achieve interoperability with other software;
to only use the Software in the territory specified in the Quotation, and if none is stated, only use the Software in the United Kingdom;
not to use the Software to create any software which is substantially similar to the Software;
to maintain accurate and up-to-date records of the number and locations of Software (and any copies expressly permitted by this Licence) and provide us with such information on request;
take steps to prevent unauthorised copying or use of the Software and to keep any copies (as expressly permitted by this Licence) of the Software secure. You shall notify us immediately if you become aware of any unauthorised use of the whole or any part of the Software;
to supervise and control use of the Software and ensure that the Software is used by your employees and/or your representatives in accordance with the terms of this Licence;
to keep any system administrator password (that we have given you or that you have chosen) that enables you to access and manage your use of the Software or certain parts of the Software confidential;
to include our copyright notice on all entire and partial copies (as expressly permitted by this Licence) of the Software in any form; and
not to provide, or otherwise make available, the Software in any form, in whole or in part (including programme listings, object code and source code) to any person other than your employees and/or your representatives without prior written consent from us and where permitted, to ensure that any such person only uses the Software for your internal business purposes.
We only supply the Software for internal use by your business, and you agree not to use the Software for any re-sale purposes.
You acknowledge and agree that you are solely responsible for and shall be solely liable for:
providing any notices and obtaining any consents related to your use of the Software including those relating to the collection, use, transfer and disclosure of personal information; and
obtaining all necessary clearances, licences and permissions and for paying all fess, charges and royalties due in relation to copyright and related rights including for all images and font licences added and displayed by you using the Software.
You shall permit us to audit your use of the Software and we may access your use of the Software for the purposes of confirming your compliance with the terms of the Licence. Our audit shall be conducted in such a manner so as to cause minimal disruption to your business. Our audits will be performed at our expense.
Subject to a fully paid up Support Contract and no ongoing dispute arising from the Support Contract agreement. We shall notify you of all Updates to the Software by email. If you choose to install an Update (which we recommend you do) you will be able to access such Update by logging in to the secure “My Account” section on our website at www.clarity-software.com, clicking the link to download the Update and following the on-screen prompts to install the Update. We are continually developing and improving the Software and therefore recommend that you download Updates as soon as reasonably possible.
FEES AND PAYMENT
In consideration of us supplying the Software you shall pay the licence fee stated in the Quotation in full (without any deduction or withholding) at the frequency stated in our Quotation to our bank account. Time for payment shall be of the essence.
If you pay the licence fee in monthly instalments we may vary the licence fee on an annual basis upon 3 months’ written notice to you.
All amounts and fees stated or referred to in this Licence are exclusive of, and you shall pay, all applicable taxes, duties and levies ruling at the date of payment.
Refunds: No refunds will be given.
Cancellations: Cancellation Terms are detailed within your contract.
INTELLECTUAL PROPERTY RIGHTS
You acknowledge that all intellectual property rights in the Software throughout the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software other than the right to use it in accordance with the terms of this Licence.
You acknowledge that you have no right to have access to the Software in source code form.
You will not attempt in any way to remove, conceal or overwrite any copyright notices or circumvent any technical protection matters incorporated into the Software to protect the intellectual property rights in the Software from being misappropriated.
In consideration of our disclosure to you of the Software for the purposes permitted under this Licence, you undertake that you will respect and preserve the confidentiality of the Software indefinitely (subject to clause 7.4 below).
You must not:
communicate or otherwise make available the Software to any third party;
use the Software for a third party’s benefit; or
use the Software for any purpose other than as permitted under this Licence.
You acknowledge that damages alone may not be an adequate remedy for any breach of this Licence and that accordingly we shall be entitled to the remedies of injunction, specific performance and/or other equitable relief for any threatened or actual breach of this clause 7.
The obligations contained in this clause 7 shall not apply, or shall cease to apply, to any software you can show to our reasonable satisfaction has been independently developed by you, or a third party, without reference to the Software.
We warrant to you that the Software will, when properly used in accordance with the Documentation on a Device that is Compatible, conform in all material respects with the Documentation for a period of 90 days from the date of installation of the Software or, if earlier, from the date that we provided you with the details, credentials or activation code necessary to install the Software (“Warranty Period”).
You shall notify us as soon as reasonably possible and in any event within the Warranty Period, upon becoming aware of a breach of the Warranty.
We shall as soon as reasonably practicable investigate any reported breach of the Warranty. If your claim for breach of the Warranty is accepted we shall (provided that you provide us with reasonable assistance in our investigation of such a claim and attempts to resolve the defect or fault) at our sole option:
provide technical support, advice, diagnosis and fixes as we consider appropriate and/or refund a reasonable proportion of the licence fee;
if, after 90 days of us receiving notification of a breach of the Warranty, we have not been able to resolve the defect or fault, terminate the Licence immediately and, on written confirmation from you, (a) that the Software has been irretrievably deleted from all your computer equipment (including any Devices) and (b) that you have destroyed any copies of the Software, then in your possession, custody or control, refund the licence fee.
The warranty does not apply if the defect or fault in the Software results from:
you having adjusted, altered or modified the Software;
improper use or operation of the Software (including use outside the terms of this Licence and/or failure to use the Software in accordance with the Documentation);
use on devices other than Devices that are Compatible;
use with any software which is not provided or approved by us; or
the Software not being kept up to date in accordance with the Updates.
We do not warrant that use of the Software will be uninterrupted or error-free.
You acknowledge that the Software has not been developed to meet your individual requirements, and:
that you accept responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements; and
except as expressly provided in the Licence, you assume sole responsibility for results obtained from your use of the Software.
This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software. Except as expressly stated in this Licence, the Software is provided “as is” and there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
LIMITATION OF LIABILITY
Nothing in this Licence shall limit or exclude our liability for:
death or personal injury resulting from our negligence;
fraud or fraudulent misrepresentation;
any other liability that cannot be excluded or limited by law.
We shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:
loss of profits, sales, business, or revenue;
loss of anticipated savings;
loss or corruption of data or information;
loss of business opportunity, goodwill or reputation; or
any indirect or consequential loss or damage.
Subject to clause 9.1 and clause 9.2, our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited as follows:
where you have paid the licence fee in a lump sum, an amount equal to the licence fee you have paid us in cleared funds under this Licence; or
where you pay the licence fee in monthly instalments, an amount equal to the amount you have paid to us in cleared funds in the previous 12 months under this Licence.
Subject to clause 9.1, we shall be discharged of all liability arising under or in connection with the Licence unless (without extending statutory limitation) proceedings are begun and served within 12 months after you became aware (or should reasonably have become aware) of the facts giving rise to such liability.
We will indemnify you against any claim made against you for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with your use of the Software in accordance with this Licence provided that:
you do not, without our prior written approval, make any admission relating to the claim;
you notify us in writing within 7 days of the claim;
we have sole control and conduct of all negotiations and proceedings; and
you provide us with the assistance, information and authority necessary to perform our obligations under this clause 10.
In the event the Software is legally held or is believed by us to infringe a third party’s rights, we shall have the option, at our expense, to:
replace or modify the Software to be non-infringing;
obtain for you a licence to continue using the Software; or
if the options in clause 10.2.1 and clause 10.2.2 cannot be accomplished on reasonable terms, terminate this Licence and reimburse a reasonable proportion of the licence fee.
We shall not be liable for any claim for infringement resulting from:
the use of a superseded release or version of the Software where the installation of Updates notified to you in accordance with clause 4 would have prevented such infringement;
improvements or modifications to the Software made by or for or used by you (subject to you and us agreeing in writing to the contrary); or
any combination of the Software (in whole or in part) with any other services or products not supplied or approved by us for use with the Software.
This clause 10 states our entire liability and your exclusive remedy for infringement of any intellectual property rights.
You hereby indemnify us against any claims made against us for the actual or alleged infringement of any third party rights arising out of or accruing from any breach by you of the terms of this Licence.
We may terminate this Licence immediately by written notice to you:
if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so;
fail to make any payment when and as due;
are unable to pay your debts in the ordinary course of business;
you have a receiver, manager, administrator, administrative receiver or trustee in bankruptcy (as the case may be) appointed for all or any part of your undertaking, assets or income, have a resolution passed or a petition presented to any court for your winding up (compulsorily or voluntarily), enter into any composition or arrangement with your creditors (whether formal or informal), have any distraint or execution levied on any of your assets, or suffer any action similar to any of the foregoing in any jurisdiction; or
we bona fide believe any of the foregoing matters may occur.
You acknowledge that the Software may, on termination for any reason, cease to function without prior notice.
Upon termination for any reason:
all rights granted to you under this Licence shall cease;
you must immediately cease all activities authorised by this Licence;
you must (a) immediately permanently delete or remove the Software from all computer equipment (including all Devices) and (b) immediately destroy any copies of the Software then in your possession, custody or control; and
the accrued rights and remedies of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
Clause 7, clause 9, clause 10, clause 11, clause 12 and clause 13 will survive termination of this Licence for whatever reason.
Data Protection and Security
To the extent that we process any “Personal Data” on your behalf when performing our obligations under this Licence, you and we record the intention that you shall be the “Data Controller” and we shall be the “Data Processor” (in each case as defined in the Data Protection Legislation) and in any such case where required by the Data Protection Legislation:
we shall act only on your documented instructions (which you acknowledge and agree shall include the terms of this Licence);
we have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
we will, at your expense, use reasonable endeavours to assist you with any subject access request that you receive relating to Personal Data that we process on your behalf under this Licence;
we will not cause or permit Personal Data to be transferred outside the EU unless:
the transfer is on the basis of a valid adequacy decision made by the European Commission;
appropriate safeguards are in place (as set out in the Data Protection Legislation); or
such transfer is otherwise permitted under applicable Data Protection Legislation;
we shall ensure that access to the Personal Data that we process on your behalf under this Licence shall be limited to our employees and permitted subcontractors who are subject to binding written confidentiality obligations; and
we shall ensure that any permitted subcontractor is appointed subject to a binding written contract containing materially the same obligations as under this clause 12 and that any permitted subcontractor complies with all such obligations.
You and we shall comply at all times with the Data Protection Legislation and shall not do anything to put the other party in breach of its obligations under the Data Protection Legislation.
You warrant that, in relation to the Personal Data for which you are Data Controller, you hold all necessary appropriate consents and have appropriate notices in place to share each Data Subject’s Personal Data with us or our permitted subcontractors in order to allow us to perform our obligations under this Licence. You shall on request provide evidence to our reasonable satisfaction that you have such consents and notices in place.
In respect of any actual or reasonably suspected unauthorised access to or acquisition of Personal Data that we process on your behalf under the terms of this Licence we shall promptly notify you and provide you with details of such breach.
We shall maintain, in accordance with the Data Protection Legislation, written records of all categories of processing activities carried out on your behalf.
We shall, in accordance with the Data Protection Legislation, make available to you such information as is reasonably necessary to demonstrate our compliance with the obligations of Data Processors under the Data Protection Legislation, and allow and contribute to audits, including inspections, by you (or your nominated auditor) for this purpose, subject to you:
giving us reasonable prior notice;
ensuring the confidentiality of all information generated as a result;
ensuring that such audit or inspection is undertaken at a mutually agreed time and date, with minimal disruption to our business and the business of our customers; and
paying our reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.
On termination of this Licence we shall cease processing Personal Data on your behalf and shall delete, destroy or deliver Personal Data provided by you to you.
We recommend that you employ a firewall as a perimeter security measure and other internet security measures including anti-virus software. We will not be responsible for any loss or damage resulting from or arising out of your failure to employ security measures to protect your systems.
If any of your data stored on the Software is lost, corrupted, degraded or otherwise altered due to our act or omission or that of our employees or permitted subcontractors you may, at our expense, require us to restore or procure the restoration of your data within a reasonable period from the latest back-up of data maintained by you in accordance with your obligations under this Licence.
We will treat your data as confidential and, save as provided in this clause 12 and/or to the extent that disclosure is required by law or a court of competent jurisdiction, we will not disclose your confidential information to any third party.
We will not appoint any third party processor of Personal Data without your prior written consent.
OTHER IMPORTANT TERMS
Authority: The person accepting this Licence on your behalf confirms that he/she is authorised to enter into this Licence on your behalf and to bind you to its terms and conditions and that you are not a consumer.
No Agency: Nothing in this Licence is intended to, or shall be deemed to, establish any agency, partnership or joint venture between you and us. Neither you nor we may bind the other in any way.
Events Outside Our Control: We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks.
Assignment: We may, at any time, assign or transfer the Licence or any part of it and/or any rights and obligations arising under it (including the benefit of any guarantee or warranty) to any person, firm or company and you shall if we require, enter into a novation agreement with us and the transferee or such other documentation as is necessary to give effect to any such assignment or transfer. You may only transfer your rights or obligations under this Licence to another person if we agree in writing.
Third Party Rights: A person not a party to this Licence shall not have any rights under/in connection with it.
Entire Agreement: This Licence constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Licence.
No Waiver: If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. A waiver of any right is only effective if it is in writing. A waiver of any right shall not prevent us from enforcing that or any other right against you if you breach such right again on a separate occasion.
Severance: Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
Law & Jurisdiction: This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.