This licence agreement ("Licence") is a legal agreement between You (the "Licensee" or "Client") and 1 Click Software Ltd of Newater House, 11 Newhall Street, Birmingham B3 3NY, UK ("Licensor" or "We" or "Us") for the Darwin recruitment software ("the Software"), which includes computer software, the associated media, and online OR electronic documentation ("the Documentation").
Hosting Services: means the services provided which allow You to access and use the Software, and on which client data and user files are stored.
Password: means the unique password given to You for the purpose of accessing the Software.
Username: means the username given to You for the purpose of accessing the Software.
Subscription Period: means the period of licence that You have entered in to with Us as stated on your order Form, commencement of which will begin on the date of this Agreement.
Subscription Data: means the data inputted by You (and anyone authorised by You) for use in conjunction with the Software which are maintained via the Hosting Services.
3rd Party Services: means a software program or website service not owned or run by the Licensor that the Software integrates with, and does not constitute a part of the Service or Software.
SMS: means the transmission of SMS messages (otherwise known as 'text' messages) in the countries where the Licensor operates an SMS service.
1.1 Headings in these conditions shall not affect their interpretation.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 A reference to writing or written includes e-mail.
1.5 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. GRANT AND SCOPE OF LICENCE
2.1 In consideration of payment by You of the agreed yearly licence fee and You agreeing to abide by the terms of this Licence, the Licensor hereby grants to You the following:
(a) A non-exclusive, non-transferable licence to use the Software as User during the Subscription Period; and,
(b) A non-exclusive non-transferable licence to access the Software through the Hosting Services
(c) To use the Documentation on the terms of this Licence.
2.2 Users of the Software agree to be bound by the terms of this Licence.
2.3 You may:
(a) download, install and use multiple instances of the Software on different machines, using the Username and Password provided upon download of the Software for your private OR internal business purposes only either (as agreed between the parties);
(b) receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors or optimisations and enhancements as may be provided by the Licensor from time to time;
(c) use any Documentation in support of the use permitted under condition 2.1
3.1 This Licence is granted for the number of years stated on the Order Form, commencing from the GoLive date (which is the date on which the Consultants are trained).
3.2 Following this period the Agreement will renew and be effected on a yearly basis (unless otherwise agreed) subject to the payment of the appropriate yearly licence fee. In the event that the licence fee is not renewed the licence will be deemed to have expired and the User(s) will no longer have access to the Software.
3.3 Fixed Licence Terms of 3 and 5 years now carry an automatic 1 year break, which require YOU to serve Notice to the Licensor within the first 6 months of the Licence Period. Subsequently 12 months after the initial GoLive date your Licences will cease, and You will be refunded unused licence time pro-rata for the entire contract less any discounts and incentives that were provided to YOU at the start of the term.
4. LICENSEE’S UNDERTAKINGS
4.1 Except as expressly set out in this Licence or as permitted by any local law, You undertake:
(a) not to copy the Software or Documentation except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by You during such activities:
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this Licence immediately upon receipt;
(g) to include any copyright notice of the Licensor on all entire and partial copies You make of the Software on any medium;
(h) to ensure details about the Software are not unnecessarily disclosed or communicated to any third party without the Licensor's prior written consent;
(i) to ensure that all other software installed on the computer where our Software is installed is correctly licensed from its Vendor and kept up to date;
(j) to ensure that each computer that the Software is installed on is kept up to date at all times with the latest Microsoft software using Windows Update;
(k) not to provide or otherwise make available the Software in whole or in part (including but not limited to, program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from the Licensor; and
(l) to take reasonable steps to ensure that no third party accesses the Software or Hosting Services using the Password or Username;
(m) not to share your licence with another User whereby more than one person is logged onto the Software or Hosting Services at the same time using the same Username;
(n) not to use the Software or Hosting Services to provide hosting services to any third parties without our written consent;
(o) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(p) is not used to create any software which is substantially similar to the Software.
4.2 When using the software in conjunction with 3rd party services which include but not limited to CV Parsing, Microsoft Outlook integration, LinkedIn Integration, Facebook integration, Job board integration and Website integration you must ensure:
(a) that you have paid any fees due (if any) to the relevant service provider in a timely manner;
(b) that you are conversant with and respectful of their terms and conditions;
(c) that if you are in any doubt as to whether you are or are not permitted to use these services then you should check with the Licensor prior to using the services.
4.3 You must not store, distribute or transmit any materials through the hosting services which: are unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence, discrimination based on race or gender, colour, religious beliefs, sexual orientation, disability or other illegal activities;
4.4 You must permit the Licensor and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have safe an uninterrupted access, including remote access, to any premises at which the Software or the Documentation is being kept or used, to the computer equipment located there, and to any records kept pursuant to this Licence, for the purpose of ensuring that You are complying with the terms of this Licence.
5. SERVICES INCLUDED WITHIN THIS LICENCE
5.1 The licence fee will include the following services:
(a) the Hosting Services;
(b) all upgrades of the Software;
(c) technical support by the online HelpDesk;
(d) SMS messages; and
(e) Email Broadcast.
5.2 The licence fee does not cover certain value-added 3rd party services which include:
(a) Social Media integration (including but limited to LinkedIn)
(b) Job Board integration (other than designated partners)
which are offered free of charge and to be used at the sole discretion of the user.
6. DATA IMPORT
6.1 The Licensor does not hold any Intellectual Property Rights over data provided by YOU for the Licensor to store in the Licensor's databases and computer systems, or over data uploaded to or entered directly into the software by YOU.
6.2 If the Data provided differs substantially from the Data Import details agreed on the Order Form, the Licensor reserves the right to charge YOU accordingly for the data You have provided for import; or,
at its sole discretion, the Licensor can refuse to import the data without affecting the Order for Licences and other Services.
7. COMMUNICATION FAIR USAGE POLICY
7.1 The Licensor provides an SMS Messaging service (referred to as "Text Messages") in certain countries, which it includes as a complementary service to the Licensee as long as the number of SMS messages sent per User in any one calendar month does not exceed 100 messages ("the SMS Threshold"). If the number of messages sent by one user in any one calendar month exceeds the SMS Threshold the Licensor reserves the right to charge YOU GBP 0.10p for each SMS sent over the Threshold, or optionally remove the provision of this specific part of the service on a per User or per Company basis.
7.2 The Licensor provides a Broadcast Email service (referred to as "Global Mail") which it includes as a complementary service to the Licensee as long as the number of Email messages sent cumulatively per Company per calendar month does not exceed 100,000 messages ("the Email Threshold"). If the number of Email messages sent cumulatively by a company in any one calendar month exceeds the Email Threshold the Licensor reserves the right to charge YOU GBP 0.05p for each Email sent over the Email Threshold, or optionally remove the provision of this specific part of the service on a per User or per Company basis.
8. OUR OBLIGATIONS
8.1 We warrant that You will not infringe any third party rights by using the Service, with the exception of 3rd party services listed under (4.2) which are often beyond our control and do not constitute part of the Service, and we will indemnify You against costs or expenses You may incur as a result of any claim that the use by You of the Service infringes any third party rights, provided You notify us within a reasonably time of any such claim being made.
8.2 We will take reasonable steps to ensure that software and data files we supply to You as part of the Service are virus-free.
8.3 We will take reasonable steps to ensure that the Service is continuous and that access to our online servers are not interrupted by any event in our control. We will notify You in advance of any planned downtime, which, if reasonably practicable, will be scheduled outside normal UK office hours.
8.4 Our target is to maintain a 99.98% server uptime, but we will reimburse your Subscription Fee pro-rata for any excessive interruption under sub-paragraph 8.3 above or if all or any significant part of the Service is discontinued.
8.5 We will take reasonable steps to ensure that the Software and data files We supply to You are virus free.
8.6 We may choose to record and You provide permission for us to record remote support sessions and telephone conversations and use them internally for diagnosis. We undertake to store these backups securely and delete them when they are no longer required.
8.7 We will use our reasonable endeavours to ensure that Subscriber Data is maintained securely and is properly backed up. In the event of any loss or damage to Subscriber Data, your sole and exclusive remedy shall be that we use our best endeavours to restore the lost or damaged Subscriber Data from the latest back up of such Subscriber Data. We shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by Us to perform services related to the Subscriber Data maintenance and back up).
9. INTELLECTUAL PROPERTY RIGHTS
9.1 You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to the Licensor, that rights in the Software are licensed (not sold) to You, and that You have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
9.2 You acknowledge that You have no right to have access to the Software in source code form or in unlocked coding or with comments.
9.3 The integrity of this Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software of the Licensor are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor apply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPM.
10.1 The Licensor warrants that:
(a) it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice;
(b) the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation, and that the Documentation correctly describes the operation of the Software in all material respects;
(c) it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice.
10.2 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility prior to ordering to ensure that the facilities and functions of the Software as described in the Documentation and demonstrated by our Sales representatives and product videos meet your actual requirements.
10.3 The software can only be expected to perform as described in the documentation when installed and used on a computer that is consistent with the minimum system requirements as published on our website at Darwin.com
10.4 You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of errors shall not constitute a breach of this Licence.
10.5 If You detect a bug or an error in the Software:
(a) You are required to report full details to the Licensor within 3 working days of first detection, via the Licensor's HelpDesk at: Darwin.com/helpdesk
(b) Within UK working hours (GMT) You will usually receive a response within 1-24 hours depending on the severity of the problem as decided by the Licensor;
(c) If such defect or fault does not result from You having amended the Software or used it in contravention of the terms of this Licence, the Licensor will use their best endeavours to identify and resolve the problem as rapidly as possible;
(d) If the Licensor is unable to solve the issue within 24 hours of first report, You hereby grant the Licensor up to 90 days to repair or replace the software, provided that You make available all the information that may be necessary to help the Licensor to remedy the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault. Please note that local environment issues and problems to do with integrating Microsoft Outlook and programs from other vendors are strictly outside of the Licensor's control.
11. LICENSOR'S LIABILITY
11.1 Nothing in this Licence shall exclude or in any way limit the Licensor's liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent that it may not be excluded or limited as a matter of law.
11.2 Subject to condition 11.1 the Licensor shall not be liable under, or in connection with, this Licence or any collateral contract for:
(a) loss of income;
(b) loss of business profits or contracts;
(c) business interruption;
(d) loss of the use of money or anticipated savings;
(e) loss of information;
(f) loss of opportunity, goodwill or reputation;
(g) loss of, damage to or corruption of data; or
(h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 11.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of condition 8 or any other claims for direct financial loss that are not excluded by any of categories (a) to (h) inclusive of this condition 11.2.
11.3 Subject to condition 1.1 and condition 11.2, the Licensor's maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to 20% of the Licence Fee.
11.4 Subject to condition 11.1, condition 11.2 and condition 11.3, the Licensor's liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
11.5 This Licence sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software, Hosting Services and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software, Hosting Services and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
12.1 The Licensor may terminate this Licence immediately by written notice to You if:
(a) You commit a material or persistent breach of this Licence which You fail to remedy (if remediable) within 7 days after the service of written notice requiring You to do so; or
(b) You do not pay the appropriate licence fee; or
(c) Any computer in the organisation where the Software is installed has or has had counterfeit or unlicensed software installed.
Where the Licensee has failed to pay appropriate fee, the Licensor reserves the right to temporarily suspend the supply of any service during the written notice period.
12.2 Upon termination for any reason:
(a) all rights granted to You under this Licence shall cease;
(b) You must cease all activities authorised by this Licence;
(c) You must immediately delete or remove the Software and Documentation from all computer equipment under your control, and certify to the Licensor that You have done so;
(d) You must notify the company in the appropriate way of the cancellation (detailed in 14. Notices);
(e) any requests for a refund requested be will be considered by the Company within 90 days of the request and subsequently granted at the sole discretion of the Company; although please note that:
(i) YOU have plenty of opportunity (including but not limited to participating in Sales demonstrations, asking questions and requesting written responses, accessing and reading documentation on the website, etc) to satisfy yourself that the Software fully meets your needs prior to commitment;
(ii) You have declared on your Order Form that the Software meets your needs;
(iii) In the event of any technical issues the Licensor has up to 90 days from the point of report to satisfactorily address and resolve the reported issue arising from YOU using the system in any intended manner;
(f) any refund made in part or in whole by the Company shall affect licence fees only and does not apply to any Software setup, configuration, data import, support fees; or apply to any other product or service provided by the Company;
(g) in the event of a cancelled order or other dispute the Company reserves the right to charge an hourly rate no greater than 60 GBP for each hour spent working on the customer account.
13. TRANSFER OF RIGHTS AND OBLIGATIONS
13.1 This Licence is binding on You and us, and on our respective successors and assigns.
13.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
13.3 We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Licence.
All notices given by You to us must be given to 1 Click Software Limited in writing by letter to Newater House, 11 Newhall Street, Birmingham B3 3NY, UK AND by email to accounts[at] darwin.com
We may give notice to You at either the e-mail or postal address You provided to us OR your representative when purchasing the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
15. DATA EXPORT
15.1 The Licensor does not hold any Intellectual Property Rights over the data stored by YOU in the Licensor's databases and computer systems.
15.2 There are however engineering and administration costs involved in taking a database offline and extracting or transferring the database to YOU or your representative. Cost will vary depending upon the volume of data involved and the format that the data is required in. YOU will be advised of these costs and timescales within 7 days of receiving your written notice and written request for a data export.
15.3 The Licensor is in no way responsible for helping YOU or advising YOU or your new provider import the data provided into your new system.
15.4 Your data will be permanently and irretrievably deleted from the Licensor's systems within 7 days of your licence expiry, so if data export is required YOU are advised to organise this at your earliest opportunity.
16. EVENTS OUTSIDE OUR CONTROL
16.1 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 events outside our reasonable control (Force Majeure Event).
16.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications and internet networks;
(f) the failings, oversights, connectivity, or change in rules by any of our industry partners or 3rd party services;
(g) the acts, decrees, legislation, regulations or restrictions of any government.
16.3 Our performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
17.1 If we fail, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve You from compliance with such obligations.
17.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
17.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to You in writing.
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
19. ENTIRE AGREEMENT
19.1 This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
19.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to entering into this Licence except as expressly stated in this Licence.
19.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in these terms and conditions.
20. LAW AND JURISDICTION
This Licence is governed by English law. Any dispute arising from, or related to, any term of this Licence shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.
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