IMPORTANT: PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE ACCESSING, INSTALLING, USING OR PAYING FOR THE SOFTWARE.
By paying the first invoice of your subscription you have agreed to be bound by the terms and conditions of this agreement.
If you do not agree to these terms and conditions, please inform RSK Tech of this and do not proceed.
This is a legal and enforceable contract between RSK Tech Ltd, a company registered in
Scotland under company registration No.SC 257610 whose registered office is at 6
Panmure Street, Dundee, United Kingdom, DD1 2BW (referenced below as “RSK Tech”) and
YOU as the individual, the company, or the legal entity (referenced below as “YOU” or“YOUR”).
WHEREAS:
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RSK Tech has developed and owns computer software applications that will be used in conjunction with an e-commerce website to enable the design of customised merchandise.
The software applications are provided to you as a service, including application and website hosting, using all appropriate hardware connected to the World Wide Web via the internet;
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RSK Tech has agreed to allow you to access and use the above computer programs and to grant to you a time-limited non-exclusive licence to use such programs and their associated
documentation and authorised updates, including application and website hosting of such computer programs under the terms and conditions of this agreement.
IT IS AGREED as follows:
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Definitions
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
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Grants of License
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RSK Tech grants to you a non-exclusive time-limited licence and limited right to use the licensed programs and their associated documentation or authorised upgrades subject to the terms and conditions contained in this agreement. Upon termination of this licence for any reason, all rights will revert to RSK Tech and you will no longer have any rights to use the software or any portion thereof.
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Except where otherwise expressly stated the Licence is granted only for the duration of the Subscription Period. Except where otherwise expressly stated the Subscription Period is a period of 12 consecutive months. Where at the end of the Subscription Period the Subscription is not renewed the Grant of Licence is automatically revoked.
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You may use the Licensed Program Materials for the purpose for which it is intended pursuant to your contractual agreement with RSK Tech.
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RSK Tech reserves the right to:
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Deny permission to use any Program Documentation for any reason;
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Remove certain Program Documentation that is no longer available for use, which terminates automatically and immediately the licence.
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Replace Program Documentation with alternative documents for any reasons, which replace automatically and immediately the licence.
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The Licence shall not be deemed to extend to any programs or materials of RSK Tech other than the Licensed Program Materials unless specifically agreed to in writing by RSK Tech.
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You acknowledge that it is licensed to Use the Licensed Program Materials only in accordance with the express terms of this Agreement and not further or otherwise.
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Subscription
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Once your Order has been placed and processed RSK Tech will use its best endeavours to commence provision of the Subscription immediately. In any event the provision of the Subscription will commence no later than 15 Business Days after completion of the Order.
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RSK Tech is under no obligation to provide any Subscription that is not set out in your Order and the relevant Hosted Licensed Programs unless RSK Tech and you enter into a new written Agreement for the provision of additional services.
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Notwithstanding the provisions of above clause, RSK Tech may take any action necessary to address or repair faults in Hosting Hardware or Licensed Computer Programs without any prior notice to you. If such faults or remedial action results in an interruption to the provision of the Subscription you will be notified in accordance with the provisions of this Agreement.
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Availability of Service
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RSK Tech will use its best and reasonable endeavours to ensure that the Subscription is provided to you on a constant, uninterrupted basis throughout the Term of this Agreement.
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Notwithstanding above clause, RSK Tech shall not be liable for Hosting Hardware downtime or interruptions to the provision of the Service where such downtime or interruptions continuously last for no more than 48 hours.
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Where the Service is continuously unavailable for more than 48 hours, RSK Tech will contact you and provide reasons for the interruption or, where this is not possible due to an undiagnosed problem, state that the problem is undiagnosed but is being investigated.
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Where Service interruption due to Hosting Hardware failure cannot be remedied within 3 business days, RSK Tech shall:
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Transfer your Website to alternative Hosting Hardware in order to restore the provision of the Service; or where this is not possible
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Notwithstanding liability clause, from the end of the initial 48 hours period of continuous service interruption, keep a record of the number of whole days of Service interruption. Upon restoration of the Service, any partial days shall be rounded down and RSK Tech will reimburse you for the interrupted period. The reimbursement will be calculated on a pro-rata basis and shall be paid to you within 28 Business Days.
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Where the provision of the Service is interrupted through the fault of any third party, RSK Tech shall bear no responsibility or liability.
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Licensed Program Materials Updates
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You acknowledge that certain portions of the Licensed Program Materials may be updated from time to time at RSK Tech’s sole discretion. You shall have rights to obtain RSK Tech’s Licensed Program Materials Updates during the term of this license agreement as long as you are currently on applicable license fees, subscription fees, royalties, taxes, etc.
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RSK Tech reserves the right to provide certain customisation or other program modules by a separate specific licence module.
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RSK Tech reserves the right to designate specific licensed program materials updates as requiring purchase of a separate subscription at any time and without notice to you. It is your responsibility to ensure you obtain and use program updates with a valid licence.
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Subscription Plans and Payment Terms
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The Subscription Fees are published on RSK Tech’s website www.rsktech.com or are available in electronic PDF or similar format on request from RSK Tech. All charges payable by you shall be in accordance with the information published;
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All fees payable by you to RSK Tech shall be paid in full, without offsetting or deductions. RSK Tech reserves the right to suspend the service or cancel your order if fees are not paid on or before the due date. Where the service is suspended due to fees not paid the licence is temporarily revoked while the service is suspended. Where the service is suspended due to fees not paid this does not affect the ongoing Subscription Period.
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The subscription fee is to be collected using the credit card details you provided at the time of purchase. Any monthly payment plan will be collected on a recurring basis from the credit card provided unless you authorise RSK Tech to collect payment using a valid alternative payment methods;
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Subscription fees are subject to change. RSK Tech reserves the right to increase fees each year. You are not liable for any additional charges or entitled to any refund during any given 12 month period of subscription. Any change in subscription fee will be reflected in subsequent subscription renewals. RSK Tech reserves the right to continue charging old fees for renewals where the new fees are higher;
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You may, at any time, upgrade your subscription package. If you choose to do so, RSK Tech will not refund the original fee paid by you, but instead charge the difference between your upgraded subscription and previous subscription for the current subscription period;
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RSK Tech shall have the right to charge interest on overdue invoices at the rate of 1.5% per month or the amount allowed by law, calculated from the date when payment of the invoice is overdue for payment up to and including the date of actual payment whether before or after judgment. Any claims for the adjustment must be made to RSK Tech within 5 days of billing. You shall be liable for the past overdue amount, interest and costs of collection, including solicitor’s fees. All payment obligations shall survive termination;
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The Licence Fee and other charges payable under this Agreement are exclusive of any applicable VAT and other sales tax which shall be payable by you at the rate and in the manner prescribed by law.
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Changes to this agreement
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RSK Tech reserves the right to change the terms and conditions of this agreement and all other terms and conditions and policies which may affect you in order to comply with changes in the law;
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You will be informed of any such changes and shall be deemed to be bound by them 2 weeks after receiving the notice;
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If you do not agree to be bound by the changes this agreement may be terminated.
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Term & Termination
The Licence shall commence on the date of purchase and shall continue for a subscription period of 1 year, and from year to year thereafter until or unless terminated in accordance with any of the reasons for termination contained herein.
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RSK Tech may terminate the Licence automatically forthwith without notice in the following circumstances:
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If you fail to pay fees due under this Agreement;
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If you are in breach of the terms of this Agreement;
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If you become the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
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If you are unable to pay your debts within the definition of Section 123 of the Insolvency Act 1986; or
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If you have a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of your undertakings, assets, or income; a resolution has been passed for the winding up thereof; or a petition has been presented to a court for the winding up thereof or for an administration order.
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You may terminate the Licence at any time after 1 year of subscription by giving at least 30 days’ prior written notice to RSK Tech, supplying user name, password, account number, etc. If you wish to terminate during a 12 month period of subscription provision, the subscription will end immediately after RSK Tech receives your notice. No refund will be issued.
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On termination of the Subscription and this Agreement, Your Website and all related material will be removed from RSK Tech Hosting Hardware.
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If you send a termination notice in error or change your mind, RSK Tech must be informed within 1 week of the notice that you wish your Account to be restored. Any notification outside of this period will require a new Account to be set up with you being required to pay a new subscription fee for a full 12 month period.
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Forthwith upon the termination of the Licence, you must return to RSK Tech the Licensed Program Materials and all copies of the whole or any part thereof, or, destroy all copies and archives, and any CD-Rom or any accompanying materials relating to the Licensed Programs, and certify in writing to RSK Tech that they have been destroyed. Such termination shall not affect payment obligation.
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Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
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Your Undertakings and Obligations
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You may not use the Subscription or Licensed Program Materials for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
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Distribution of viruses, spyware, malware, or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;
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Distribution of pirated material including, but not limited to software, movies, music and written works; and
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Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.
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You may not use your website to link to any other sites or systems hosting any material described in above clause.
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You will monitor and supervise any and all third party activity on your website (including communications systems such as forums). Any third party activity that may fall within the provisions of clause 9.1 must be stopped or removed, as appropriate.
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You must ensure that any and all activity conducted through Your Website in relation to the collection of personal information complies with the provisions of the Data Protection Act 1998.
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You must ensure that any and all activity conducted through Your Website in relation to selling complies with the provisions of the Distance Selling Regulations 2000.
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You are responsible and accountable for all activity relating to your website and the Service that is carried out by third parties on your behalf.
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You will use your best and reasonable endeavours to supply all information required to facilitate the provision of the Subscription to RSK Tech in a timely fashion.
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Intellectual Property and Proprietary Rights
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The Licensed Program Materials and the Intellectual Property Rights of whatever nature in the Licensed Program Materials are and shall remain the property of RSK Tech.
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You will not acquire ownership rights over any of RSK Tech’s Intellectual Property in or in relation to the subscription or in relation to any other property owned by RSK Tech.
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RSK Tech will not acquire ownership rights over any of your Intellectual Property in your Website or any other material belonging to you.
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You agree to fully indemnify RSK Tech against all costs, expenses, liabilities, losses, damages, claims and judgments that RSK Tech may incur or be subject to as a result of the infringement of any Intellectual Property infringement owned by third parties arising from:
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Your failure to obtain the necessary rights and permissions from third parties in order to enable RSK Tech to legally provide the subscription;
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The provision of the subscription by RSK Tech based upon information and material provided by YOU.
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You agree to notify RSK Tech immediately if YOU become aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person
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RSK Tech shall defend at its own expense any claim brought against you alleging that the Use of the Licensed Program Materials infringes the Intellectual Property Rights of a third party ('Intellectual Property Claim') and RSK Tech shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that you:
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furnish RSK Tech with prompt written notice of the Intellectual Property Claim;
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provide RSK Tech with reasonable assistance in respect of the Intellectual Property Claim;
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give to RSK Tech the sole authority to defend or settle the Intellectual Property Claim.
- If, in RSK Tech’s reasonable opinion, the use of the Licensed Program Materials is or may become the subject of an Intellectual Property Claim then RSK Tech shall either:
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obtain on your behalf the right to continue using the Licensed Program Materials which are the subject of the Intellectual Property Claim; or
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replace, or, with your written consent, modify the Licensed Program Materials which are the subject of the Intellectual Property Claim so they become non-infringing.
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If the remedies set out in above clause are not in RSK Tech’s opinion reasonably available, then you shall return the Licensed Program Materials which are the subject of the Intellectual Property Claim.
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RSK Tech shall have no liability for any Intellectual Property Claim resulting from the Use of the Licensed Program Materials in combination programs not supplied or approved by RSK Tech or any modification of any item of the Licensed Programs by a party other than RSK Tech or its authorised agent.
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Security and Control
You may during the continuance of the Licence:
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effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
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retain the Licensed Program Materials and all copies thereof under your effective control;
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Copying, Restrictions on Alterations
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You may NOT copy, distribute, perform, display, or transmit the software, source code, object code, printed documentation that accompanies the software, or any portion thereof without RSK Tech’s express, prior, written consent.
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No copies may be made of the Program Documentation without the prior written consent of RSK Tech. RSK Tech shall provide you with the Program Documentation containing sufficient information to enable proper use of all the facilities and functions of the software. If you require further copies of the Program Documentation then these may be obtained under licence from RSK Tech in accordance with its standard scale of charges from time to time in force.
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You may NOT sublicense, rent, or lease any portion of the Licensed Program Materials without RSK Tech express, prior, written consent.
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You may NOT undertake translate, adapt, vary, modify, disassemble, decompile or reverse engineer, circumvent any anti-piracy technology or attempt to discover the source code of the software, or create derivative works from the Licensed Program Materials without RSK Tech's prior written consent.
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In the case of reverse analysis where permitted by applicable law, you may incidentally decompile the Licensed Programs only if it is essential to do so in order to achieve interoperability of the Licensed Programs with another software program or hardware ('Permitted Purpose') and provided the information obtained by you during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party without RSK Tech's prior written consent and is not used to create any software which is substantially similar to the expression of the Licensed Program Materials nor used in any manner which would be restricted by copyright.
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Disclaimer of Warranty
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RSK Tech warrants that in providing its obligations under this Agreement it will attain and maintain appropriately high standards of care and skill in providing the service.
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When notifying a defect or error you shall (as far as is feasible)) provide RSK Tech with a documented example of such defect or error.
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The warranties above shall be subject to your complying with your obligations under the terms of this Agreement and shall also be subject to the limits and exclusions of liability. In particular, the warranties shall not apply to the extent that any defect in the Licensed Programs arose or was exacerbated as a result of:
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incorrect use, operation or corruption of the Licensed Programs;
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any unauthorised modification or alteration of the Licensed Programs;
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use of the Licensed Programs with other software with which it is incompatible.
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To the extent permitted by applicable law, RSK Tech:
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does NOT warrant that the Licensed Programs will meet your requirements;
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makes no warranty that the Licensed Programs are error free or that their use will be uninterrupted and YOU acknowledge and agree that the existence of such errors shall not constitute a breach of this Agreement;
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does not give any warranty in respect of third party products. RSK Tech will pass on to you the benefit of any third party warranty supplied by a third party manufacturer or supplier.
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Disclaims all other warranties with respect to the licensed programs, either express or implied, including the but not limited to any implied warranties relating to quality, fitness for any particular purpose, and no infringement of intellectual property rights or merchantablity.
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Your Warranties
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You must be at least eighteen years old of age and have the authority to enter into this licence on your own behalf and/or that of your company, employer or principal;
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You do not reside in any country to which the export of UK products is prohibited or restricted and you may not ship, transfer or export the Licensed Program Materials to any country or use any portion thereof in any manner prohibited by any law, restriction or regulations;
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Your use of Licensed Program Material will not violate any applicable law or regulation of any country, state/region, or other governmental entity;
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The information that you provide under this agreement is accurate and true, including but without limitation, all credit card or other payment information and you shall provide and update such information as necessary;
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You are solely responsible for determining whether your use of any images requires the consent of any other party or the licence of any additional rights. If you are unsure whether additional rights are needed for your use of the images, you are responsible for consulting with competent legal counsel;
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And if you are acting as an agent, you must inform your client or principal of the terms of this license.v
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Liability
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RSK Tech shall not be liable to you or third parties for:
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Any losses resulting from interruptions or downtime to the service;
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Any inability, on the part of the client or the part of the client’s customers, to use the service;
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Any damage or loss resulting from the loss of confidentiality caused by the storage of information on the internet
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Any damage or loss resulting from a lack of functionality or perceived lack of functionality the loss of caused by the storage of information on the internet
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Nothing in this clause shall exclude the liability of RSK Tech for the death or personal injury resulting from RSK Tech’s negligence or that of its employees or agents.
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Nothing in this clause or in this agreement shall exclude the liability of RSK Tech for fraudulent misrepresentation.
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The parties acknowledge and agree that the limitations contained in this clause are reasonable in the light of all the circumstances.
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Your statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, 'RSK Tech' includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999
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Indemnity
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You will fully indemnify RSK Tech against all costs, expenses, liabilities, losses, damages and judgements that RSK Tech may incur or be subject to as a result of any of the following:
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Your misuse of the Subscription;
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Your breach of this Agreement;
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Your negligence or other act of default;
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The Activities of third parties conducted on your website using facilities such as blogs, forums and chat.
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Confidential Information
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Both parties agree that all information marked 'confidential' or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Licensed Program Materials, and other information supplied by you or RSK Tech, such as your sales and customer information (in this Agreement collectively referred to as 'the Information') will be treated as confidential and with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
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Both parties shall not without the prior written consent of the other party divulge any part of the Information to any person except:
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to their own employees and then only to those employees who need to know the same;
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to either party's auditors, an officer of an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority or any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation;
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Both parties undertake to ensure that persons and bodies referred to in clause 17.2 are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other party.
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Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
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The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
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Data Protection
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The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
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Agency, Partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
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Assignment
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RSK Tech reserves the right to assign or otherwise transfer any rights or obligations under this Agreement.
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You may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of RSK Tech, which shall not be unreasonably withheld.
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Force Majeure
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Neither RSK Tech nor YOU shall be liable for breaching this Agreement where that breach results from Force Majeure.
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Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; flood and theft.
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Notices
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All notices under this Agreement shall be in writing.
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Notices shall be deemed to have been duly given:
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when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
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when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
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Severance
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In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The waiver by either party of any provision of this Agreement will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.
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Successors and Assignees
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This agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
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In this Agreement references to a party include references to a person:
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who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or
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who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
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Waiver
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No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
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Counterparts
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This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
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Subcontracting
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With the prior written consent of RSK Tech (such consent not to be unreasonably withheld or delayed) you may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that you shall remain liable for such performance and shall indemnify RSK Tech against any loss or damage suffered by RSK Tech arising from any act or omission of such agents or sub-contractors.
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Language
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This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
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Third Parties
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Subject to clause above, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
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Law and Jurisdiction
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This Agreement is governed by the laws of Scotland. Any dispute relating to this Agreement shall fall within that jurisdiction.
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Compliance with Relevant Law
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Both parties will comply with all applicable laws, rules and regulations in respect of all activities conducted under this Agreement.
If you have questions and concerns regarding to this agreement, or if you wish to contact RSK Tech for any reason, please write to: RSK Tech Ltd, Customer Service, 6 Panmure Street, Dundee, DD1 2BW, United Kingdom, or contact RSK Tech via email at info@rsktech.com.
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