Terms and Conditions – Annual Software Support Subscription

Rascular Technology Limited (“Rascular”) Terms and Conditions: Annual Software Support Subscription

1. Application

These Terms and Conditions shall apply to the purchase of the Annual Software Support Subscription for the products and services detailed in the attached Quotation to you (“Buyer”) from Rascular Technology Limited a company registered in England and Wales under number 4318718 whose registered office is: C/O DRE & CO, Number 5 The Business Quarter, Ludlow, Shropshire, SY8 1FD, United Kingdom (“Seller”). No other terms and conditions shall apply to the sale of the products and services unless agreed upon in writing between the Buyer and Seller.

2. Interpretation

The terms and conditions detailed herein, together with the Rascular Technology Limited Quotation Terms and Conditions for the Sale of Products and Services attached to the quote and available at the Supplier’s website www.rascular.com is incorporated by reference in its entirety, apply to you the “Buyer” and/or your Customer the “End-User” (Customer and End-User are used interchangeably in these Terms and Conditions). By placing an order with the Seller, the Buyer/End-User agrees to be bound by the terms of these Terms and Conditions and acknowledges that they have read them in full. These Terms and Conditions are available at the Supplier’s website www.rascular.com.

The definitions and rules of interpretation in this clause apply in these Terms and Conditions.

2.1   Charges: the charges payable for the Services, being the charges for the Annual Software Support Subscription set out in the attached Quote and any charges agreed for Optional Services.
2.2  Commencement Date: Date of receipt of the Buyer’s payment at the Seller’s bank as detailed in the Seller’s invoice to the Buyer for the Services.
2.3  Buyer: A third party usually a Systems Integrator, Dealer or Distributor providing services to the End-User; or the End-User.
2.4  Confidential Information: has the meaning given in clause 9.
2.5  Subscription Period: any 12-month period ending at midnight on the day prior to the anniversary of the commencement date.
2.6  Licence: in respect of each piece of Software, the licence made between the Supplier and the Customer in respect of the Customer’s use of that Software in-line with the EULA accompanying the Software.
2.7  Maintenance Release: a release of the Software (including a new version) which corrects faults, adds functionality or otherwise amends or upgrades the Software.
2.8  Manager: the person appointed by the Customer from time to time in order to fulfil the role described in clause 8.2.
2.9  Modification: any Maintenance Release which is acquired by the Customer.
2.10 Optional Service: any services that the Customer and the Supplier may from time to time agree shall be supplied to the Customer by the Supplier under these Terms and Conditions.
2.11 Services: includes the Standard Support Service, and any Optional Services.
2.12 Software: the software licensed by the Supplier to the Customer detailed in any order for the Annual Software Support Subscription provided by the Supplier.
2.13 Standard Support Service: the support service as described in clause 4, which is to be provided by the Supplier to the Customer under clause 4.1 and clause 4.2.
2.14 Standard Support Hours: 09:00 am to 5.00 pm Monday to Friday, except on days which are bank holidays in England.
2.15 Supported Software: has the meaning set out in clause 3.1.
2.16 The headings in these Terms and Conditions do not affect its interpretation. Except where the context otherwise requires.
2.17 Words in the singular include the plural and those in the plural include the singular.

3.     Supported Software

3.1.  The Supported Software is:
3.2.  the Software; and
3.3.  any Modification which is acquired by the Customer (whether under the Licence, these Terms and Conditions or any other agreement between the Supplier and the Customer) during the course of the Licence and which accordingly becomes part of the software defined as the Software under the Licence.

4.  The services

4.1.  The Supplier shall supply, and the Buyer/End-User shall take and pay for, the following Services:

a)         the Standard Support Service; and
b)         such of the Optional Services as are included from time to time within an order for Optional Services agreed between the Supplier and the Customer under clause 5.

4.2.  In relation to the Standard Support Service:

a)         the Standard Support Service shall be provided during the Standard Support Hours and shall comprise:

i)        a telephone help desk to provide first-line technical support to users of the Supported Software;
ii)       remote diagnosis and, where possible, correction of faults using the software management software.

4.3.  The Supplier shall have no obligation to provide the Services where faults arise from:

a)         misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by the Supplier), including failure or fluctuation of electrical power;
b)         use of the Software in combination with any equipment or software not provided by the Supplier or not designated by the Supplier for use with any Modification forming part of the Supported Software, or any fault in any such equipment or software;
c)         relocation of the Software by any person other than the Supplier or a person acting under the Supplier’s instructions;
d)         any breach of the Customer’s obligations under these Terms and Conditions or having the Software maintained by a third party; or
e)         any Modification not authorised by the Supplier.

5.     Orders for Optional Services

5.1   The Customer may from time to time request the Supplier to supply Optional Services at rates agreed between the parties at the time. The Supplier shall use its reasonable endeavours to comply with the Customer’s request, but the Customer acknowledges that the Supplier’s ability to supply the Optional Services shall depend on the availability of appropriate resources at the time in question.
5.2   Where the Supplier agrees to provide Optional Services, such agreement shall be embodied in an order for Optional Services. Each order for Optional Services shall be made under, and shall incorporate, these Terms and Conditions.

6.     Charges

6.1   In consideration of the Services (excluding for this purpose any Optional Services), the Buyer shall pay the Charges as notified by quote. The Annual Software Support Subscription Fee (as notified by quote) shall be paid in advance of the commencement of each Subscription Period by the Buyer to the Supplier and any other applicable charges shall be paid by the Buyer to the Supplier on a 100% with order basis upon invoice.
6.2   Charges for any Optional Services to the Buyer shall be charged and invoiced to the Buyer by the Supplier (and paid by the Buyer) following acceptance by the Supplier of the Buyer’s written order for such Optional Service (as the case may be).
6.3   The Buyer shall reimburse any reasonable travel or subsistence expenses incurred by the Supplier where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.
6.4   If the Buyer fails to pay any amount payable by it under these Terms and Conditions, the Supplier may charge the Buyer interest on the overdue amount, payable by the Buyer immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% a year above the base rate for the time being of Barclays Bank Plc. Such interest shall accrue on a daily basis and be compounded quarterly.
6.5   All amounts payable under these Terms and Conditions shall be exclusive of VAT or relevant local sales tax (if any) or any relevant local sales taxes which shall be paid at the rate and in the manner for the time being prescribed by law.

7.     Additional purchases

7.1   In the event that the Customer is granted any additional licences by the Supplier to use the Software during the course of the Subscription Period (Additional Licences), the parties agree that:-

(a)       the Supplier shall supply the Services in respect of such Additional Licences; and
(b)       the Charges shall be increased by, in respect of each Additional Licence, the ‘Unit List’ (Price) as agreed by the Supplier and the Buyer, save that such fee shall be reduced on a pro rata basis for any time in the Subscription Period prior to the Customer having the benefit of the licence, plus the applicable warranty period of 90 days, shall not be chargeable to the Customer.

7.2   Any increase in Charges under clause 7.1(b) above shall be payable by the Buyer to the Supplier on the payment terms within the quote for the additional licences.

8.     The Customer’s responsibilities

8.1   The Customer shall provide the Supplier, and all persons duly authorised by the Supplier with full, safe and uninterrupted access including remote access to the Customer’s premises systems, facilities and the Software as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours.
8.2   The Customer shall nominate a Manager to be available to liaise with, and respond to queries from, the Supplier.
8.3   The Customer shall:

(a)       co-operate with the Supplier in performing the Services and provide any assistance or information as may reasonably be required by the Supplier, including in relation to the diagnosis of any faults; and
(b)       report faults promptly to the Supplier; and
(c)        promptly use its reasonable endeavours to install any Maintenance Release recommended by the Supplier for installation.

9.     Confidentiality

9.1   Each party shall, during the Subscription Period and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of the services) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party (Confidential Information), unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of Terms and Conditions, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
9.2   The terms of this agreement may not be disclosed by the Buyer (other than to its legal advisors) without the prior written consent of the Supplier.
9.3   The provisions of this clause 9 shall remain in full force and effect notwithstanding any termination of the Annual Software Support Subscription.

10.   Rights, Warranties and Liability

10.1  In respect of Products which are directly produced by the Seller or Services provided directly by the Seller, the only warranty given by the Seller to the Buyer is that the Seller shall in accordance with normally accepted professional standards make good as quickly as is reasonably possible and at its own expense any defects notified in writing to the Seller by the Buyer and agreed as a defect by the Seller which develops during the Subscription Period of the Product or performance of the Services.
10.2  The Seller does not warrant that the Products are free from minor errors not materially affecting performance. Such errors shall not be rectified in the absence of a prior written agreement to the contrary.
10.3  The undertaking given in this clause shall not apply if the Products are altered by any party other than the Seller or is operated or run on any platform or in any environment inappropriate for the Products.
10.4  The Seller shall not be liable for any loss or damages of any nature, direct or indirect, including any loss of profits or consequential damages suffered or incurred by the Buyer for whatever reason.
10.5  The exclusions of liability contained within this Clause 10 shall not exclude or limit the liability of the Seller:

a)       for death or personal injury caused by the Seller’s negligence;
b)       for any matter for which it would be illegal for the Seller to exclude or limit its liability; and
c)       for fraud or fraudulent misrepresentation.

11.   Duration

Supply of the Services by the Supplier to the Customer shall commence on the Commencement Date, and, subject to termination in accordance with the provisions of these Terms and Conditions, shall continue for a fixed term of 1 year.

12.   Termination

12.1  Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this Annual Software Support Subscription and/or the Support Services with immediate effect by giving written notice to the other party if:

(a)    the other party fails to pay any amount due under these Terms and Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b)    the other party commits a material breach of any term these Terms and Conditions (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c)    the other party repeatedly breaches any of the terms these Terms and Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms and Conditions;

12.2  Either party may terminate the Annual Software Support Subscription in accordance with clause 14.
12.3  If the Customer fails to make arrangements for the installation of a Maintenance Release within 1 month of the Supplier’s notifying the Customer that such Maintenance Release is available and recommended for installation, the Supplier may terminate The Services by giving one month’s written notice to the Customer.

13.   Effect of termination

13.1  Other than as set out in these Terms and Conditions, neither party shall have any further obligation to the other after termination.
13.2  Any provision of these Terms and Conditions which expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13.3  Termination of the Services, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
13.4  On termination of the Services due to breach of these Terms and Conditions by the Supplier, the Supplier shall promptly refund such portion of the Charges as relates to the period after expiry or termination on a pro rata basis.
13.5  On termination of the Service for any other reason than that set out in clause 13.4 above, the Supplier shall not be obliged to refund such portion of the Charges as relates to the period after expiry or termination on a pro rata basis.
13.6  On termination of the Services for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to the Supplier. The Supplier shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.

14.   Force Majeure

Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.  Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

15.   Waiver

No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

16.   Remedies

Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

17.   Severance

17.1  If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
17.2  If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

18.   Law and Jurisdiction

18.1  These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
18.2. Any dispute, controversy, proceedings or claim between the Seller and the Buyer relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.