Webspoke Internet Solutions
(“Licensor”), whose registered business address
is 55 Kingsley Road, Brighton, East Sussex, BN1 5NH,
UK, hereby grants you (“Licensee”) a non-exclusive,
non-transferable Licence to access and use a single copy
of the AuctionTeq software including all help files,
ASP script files and databases (collectively referred
to as "the Software"). The copyright, database
rights and all other intellectual property rights in
the Software remain the property of Licensor.
2. ACCEPTANCE
2.1
By registering with AuctionTeq
and clicking on the icon to purchase and use the software,
Licensee is deemed to accept the terms of this Agreement. The
Commencement Date shall be the date when Licensee clicks
on the said icon.
3. USE OF THE SOFTWARE
3.1
For the purposes of this Licence "Use" shall
mean and include:
3.1.1
utilisation of the Software by copying,
transmitting or loading the same into the temporary
memory of a personal computer, or Internet web server
for the processing of the instructions or statements
contained in such Software;
3.1.2
copying the Software for back-up or archive
purposes provided that no more than a single copy will
be in existence under any Licence at any one time without
prior written consent from the Licensor or as otherwise
permitted by law;
3.1.3
utilising (but non copying) the instructional and/or
operational manuals relating to the Software.
4. COPYRIGHT
4.1
The Software is owned by the Licensor or
its suppliers and is protected by copyright laws and international
treaty provisions. The Licensee may either (a) make a single
copy of the Software solely for backup or archival purposes,
or (b) transfer the Software to a single hard disk provided
the Licensee keeps the original solely for backup or archival
purposes. The Licensee must reproduce and include the copyright
notice on any copy. The Licensee may not copy the written
materials accompanying the Software.
5. LICENSOR’S OBLIGATIONS
5.1
On registration, Licensee has the option
either to request Licensor to provide Licensee with a domain
name registration for Licensee’s e-commerce auction
site, or to request Licensor to host Licensee’s existing
domain name.
5.1.1
If Licensee requests that Licensor provides
Licensee with a domain name for Licensee’s e-commerce
auction site, Licensor agrees to obtain a domain name
registration for a domain name as requested by Licensee. In
the event that such a domain name cannot be registered,
Licensor will request that Licensee provide an alternative
domain name, which Licensor will then attempt to register
on behalf of Licensee.
5.1.2
If Licensee requests
that Licensor host’s Licensee’s existing
domain name then Licensor shall effect the transfer
of the domain name to Licensor’s server (where
applicable).
6. LICENSEE’S OBLIGATIONS
6.1
The Licensee undertakes
not to perform any of the acts referred to in this sub-clause
6.1 except to the extent and only to the extent permitted
by law to the Licensee as a lawful user of the Software
and only then for the specific limited purpose permitted
by law or hereunder. The Licensee undertakes:
6.1.1
not to copy the Software
(other than for normal System operation and as specified
in Clause 3 above) nor otherwise reproduce the same
provided that the Licensee may copy the Software
for back-up purposes or incidentally, in the course
of converting the Software in accordance with Clause
6.1.3 below.
6.1.2
not to translate,
adapt, disassemble, decompile, reverse engineer,
vary or modify the Software, except where express
permission has been granted by Licensor;
6.1.3
not to remove, obscure or alter
any notice of patent, copyright, trademark or other
proprietary notice on the Software; Removal of the
copyright notice is only permitted pursuant to Clause
8.4 below;
6.1.4
not to sub-License, distribute,
rent, lease, or otherwise transfer the Software or
any unique access code or copy the Software;
6.1.5
not to use the Software to attract
customers away from the Licensor or to procure commercial
advantage over the Licensor or to use it in any other
way which is likely to be detrimental to the Licensor
or its business;
6.1.6
not to enable a third party to
do any of the acts set out in this Clause 6.1.
6.2
This Agreement permits the Licensee to access and use
the Software, which will reside on Licensor’s server
or a server authorised by Licensor, to enable Licensee
to design, construct and operate 1 (one) e-commerce auction
site that will be accessed by other users via the Internet.
6.3
To provide accurate and truthful registration information.
6.4
To maintain accurate and up-to-date records of the number
and location of all copies of the Software
6.5
To supervise and control use of the Software in accordance
with the terms of this Licence.
6.6
To ensure that its employees, agents and other parties
who will use the Software are notified of this Licence
and the terms hereof prior to such employee, agent or party
using the same.
6.7
To reproduce and include the copyright notice of the
Licensor on all and any copies, whether in whole or in
part, in any form, including partial copies or modifications
of the Software made herein. Removal of the copyright notice
is only permitted pursuant to Clause 8.4 below.
6.8
Not to provide or otherwise make available the Software
in whole or in part in any form in connection with or in
conjunction with or as part of any Managed Service or to
any person other than as specified in Clause 6.7 above
without prior written consent from the Licensor. For the
purpose of this Clause 6.9 "Managed Service" shall
mean any commercial time sharing rental, bureau service
or outsourcing agreement or arrangement.
6.9
Within fourteen (14) days after the date of termination
or discontinuance of this Licence for whatever reason,
to destroy the Software and all updates, upgrades or copies,
in whole and in part, in any form including partial copies
or modifications of the Software received from the Licensor
or made in connection with this Licence, and all documentation
relating thereto.
7. WARRANTY
7.1
The Licensee acknowledges that the Software
is not error-free and agrees that the existence of such
errors shall not constitute a breach of this Licence.
7.2
In the event that the Licensee discovers
a material error which substantially affects the Licensee’s
use of the same and notifies the Licensor of the error
within ninety (90) days from the date of the first use
of the Software (the “warranty period”) the
Licensor shall use all reasonable endeavours to correct
by patch or new release that part of the Software which
does not so comply provided that such non-compliance has
not been caused by any modification, variation or addition
to the Software not performed by the Licensor or caused
by its incorrect use, abuse or corruption of the Software
or by use of the Software with other Software or on equipment
with which it is incompatible.
7.3
To the extent permitted by law, the Licensor disclaims
all other warranties with respect to the Software, either
express or implied, including but not limited to any implied
warranties or terms and conditions of satisfactory quality
or fitness for any particular purpose. Specifically the
Licensor does not warrant that the functions mentioned
in the Software will meet the Licensee’s individual
requirements.
8. PAYMENT
8.1
Once Licensee has accepted the terms of this
Agreement by clicking on the icon to purchase and use the
Software, Licensee will immediately be invoiced for the
sum due, payable to Licensor. Such invoice will be
sent to the address as per the registration details provided
by Licensee. This sum will be payable to Licensor
within 14 (fourteen) days of receipt of the invoice.
8.2
On the yearly anniversaries of the Commencement
Date, Licensor shall issue an invoice for annual hosting
and Licence renewal. If Licensee wishes to extend
the term of the Licence in accordance with Clause 9 of
this Agreement, then such invoices shall be payable within
14 (fourteen) days of receipt.
8.3
If the payments referred to at Clauses 8.1 and 8.2 above
are not received within the 14 (fourteen) day period, then
Licensee’s rights to access and use the Software
will terminate forthwith and access will be denied.
8.4
If Licensee wishes to remove the copyright notice
and/or hyperlink text (“Auction Software powered by auctionteq.biz”)
from the footer of the e-commerce auction site Software,
a fee of £1,000 + VAT will be payable to Licensor. Upon
written request from Licensee, Licensor will issue an
invoice for the sum above, payable within 14 (fourteen)
days of receipt.
9. TERM AND TERMINATION
9.1
This Agreement shall continue for an initial
term of 12 (twelve) months from the Commencement Date.
9.2
This Agreement shall continue for further
terms of 12 (twelve) month periods provided that Licensee
makes payments to Licensor as set out in Clause 8.2 above.
9.3
This Agreement shall terminate immediately and automatically
if Licensee fails to abide by any of the terms set out
in this Agreement. Further, Licensor expressly retains
the right to claim damages against Licensee for breaches
of Clause 6.1 above.
9.4
Upon termination, the Licence granted to Licensee pursuant
to Clause 1 above shall cease immediately. Further,
all obligations on Licensor shall immediately come to an
end, particularly those obligations set out in Clause 5.1
above in relation to hosting the Licensee’s e-commerce
auction site.
9.5
The Licensor may by notice in writing to the Licensee
terminate this Licence if:
9.5.1
the Licensee is in breach of any term,
condition or provision of this Licence or required
by law and fails to remedy such breach (if capable
of remedy) within thirty (30) days of having received
written notice from the Licensor specifying such
breach or
9.5.2
if Licensee ceases to carry on business
or a substantial part thereof or enters into liquidation
whether compulsory or voluntary other than for the
purpose of amalgamation or reconstruction or compounds
with its creditors generally or has a receiver or
manager or administrator appointed over all or any
part of its assets or becomes unable to pay its debts
as they fall due.
9.6
Upon termination, the Licensee shall comply with its
undertaking specified in Clause 6.10 above.
9.7
Either party may terminate this Licence by giving the
other party not less than thirty (30) days written notice.
9.8
Termination, howsoever or whenever occasioned shall be
subject to any rights and remedies the Licensor may have
under this Licence or under law.
10. HOSTING TERMS
10.1
This Clause 10.1 sets out the obligations
on Licensee operating Licensee’s e-commerce auction
site in conjunction with using Licensor’s web hosting
service.
10.2
Licensee agrees that it is solely responsible
for all material posted on Licensee’s e-commerce
auction site. Licensee acknowledges that Licensor
does not screen material posted by Licensee on Licensee’s
e-commerce auction site. However, Licensor reserves
the right (but is not obliged) to delete any material from
Licensee’s e-commerce auction site that breaches
the terms of this Agreement or is in any way unlawful.
10.3
Licensee shall not on Licensee’s e-commerce auction
site:
10.3.1
post material that is harmful, unlawful,
pornographic, obscene or in any way objectionable;
10.3.2
post material that infringes any third
party intellectual property rights;
10.3.3
post material that contains computer viruses or
is in any way likely to cause damage to hardware,
software or telecommunications equipment; and
10.3.4
post material that will interfere with or disrupt
the operation of Licensor’s server.
1. LICENSOR’S LIABILITY
11.1
The Licensor shall not be liable to the Licensee
for any loss or damage whatsoever or howsoever caused arising
directly or indirectly in connection with this Licence,
the Software, its use or otherwise.
11.2
The Licensor expressly excludes liability
for indirect, special, incidental or consequential loss
or damage which may arise in respect of the Software, its
use, the System or in respect of other equipment or property,
or for loss of profit, business, revenue, goodwill or anticipated
savings.
11.3
The Licensor does not exclude liability for death or
personal injury to the extent only that the same arises
as a result of the negligence of the Licensor, its employees,
agents or authorised representatives.
11.4
If the Licensor is unable through no act or default of
the Licensee to secure the correction of defects in the
Software in accordance with and during the ninety (90)
day warranty period and where the Software is totally unusable
due to the defect, Licensee may reject it by sending written
notice to the Licensor within fourteen (14) days of receipt
of notice from the Licensor that the Licensor is unable
to correct or procure the correction of such defects.
12. INTELLECTUAL PROPERTY RIGHTS
12.1
The Licensee acknowledges that any and all
of the copyright, trademarks, trade names, patents and
other intellectual property rights subsisting in or used
in connection with the Software including but not limited
to all documentation and manuals relating thereto, all
images, animations, audio music and text incorporated into
the Software remain the sole property of the Licensor.
The Licensee agrees to immediately notify the Licensor
of any actual or suspected infringement and the Licensee
also agrees not to use any of the Licensor’s trademarks
as any part of the name under which the Licensee conducts
its business.
13. CONFIDENTIAL INFORMATION
13.1
If during the performance of its obligations
under this Licence either party (“the Receiving Party”)
is exposed to any information of the other (“the
Disclosing Party”) which the Disclosing Party identifies
as being of a confidential or sensitive nature, the Receiving
Party shall respect the confidentiality of such information
and will not use it save insofar as its use is necessary
in the performance of its obligations under this Licence
and the Receiving Party shall restrict dissemination of
such information to its employees on a need-to-know basis.
13.2
The obligations accepted by the Receiving
Party under Clause 13.1 above shall not apply to any material
which:
13.2.1
is already known to the Receiving Party;
or
13.2.2
is public knowledge or enters the public
domain without fault on the Receiving Party’s
part; or
13.2.3
is lawfully received from a third party; or
13.2.4
is ordered to be disclosed by a court or other
tribunal of competent jurisdiction.
13.3
The obligations upon the Receiving Party under Clause
13.1 shall not oblige the Receiving Party to exercise a
higher degree of care towards the Disclosing Party’s
confidential information than it does towards its own information
of a like nature.
14. FORCE MAJEURE
14.1
The Licensor shall be under no liability
to the Licensee in respect of anything which, apart from
this provision, may constitute breach of this Licence arising
by reason of force majeure, where such event is beyond
that party’s reasonable control.
15. ASSIGNMENT
15.1
The Licensee shall not assign or otherwise
transfer all or any part of the Software or this Licence
without the prior written consent of the Licensor.
16. WAIVER
16.1
No delay, neglect or forbearance
on the part of either party in enforcing its rights or
any of them against the other shall be construed as a
waiver or in any way prejudice any of its rights hereunder.
17. HEADINGS
17.1
The headings of the terms and conditions
herein contained are inserted for convenience or reference
only and are not intended to be part of or to affect the
meaning or interpretation of any of the terms and conditions
of this Licence.
18. SEVERABILITY
18.1
In the event that any of these terms and
conditions or provisions shall be determined by any competent
authority to be invalid, unlawful or unenforceable to any
extent, such terms, condition or provision shall to that
extent be severed from the remaining terms, conditions
and provisions which shall continue to be valid to the
fullest extent permitted by law.
19. LAW
19.1
This Agreement shall be governed by and
construed in accordance with the laws of England and shall
be subject to the jurisdiction of the English Courts.
20. NOTICES
20.1
ny notice, instruction or other document
to be given by either party to the other hereunder may
be left at or sent by pre-paid post, telex or confirmed
facsimile transmission (as appropriate) to the address
specified above or such other address notified by either
party to the other for such purpose.
21. SURVIVAL
21.1
The provisions of Clauses 6, 8, 9, 11, 12,
17, and 18 shall survive termination of this Licence.
22. ENTIRE AGREEMENT
22.1
This Agreement supersedes all prior agreements
and arrangements of whatever nature and sets out the entire
agreement and understanding between the parties relating
to its subject matter. Nothing in this clause shall relieve
either party of liability for fraudulent misrepresentations
and neither party shall be entitled to any remedy for either
any negligent or any innocent misrepresentation except
to the extent (if any) that a court or arbitrator may allow
reliance as the same as being fair and reasonable.
Download
this document in PDF format.