LICENCE AGREEMENT DATED______________________2013
This Software Licence Agreement comprises
the Special Conditions in Part A
and
the General Conditions in Part B
PART A -SPECIAL CONDITIONS
Licensor:
University of Sheffield, Firth Court, Western Bank,
Sheffield S10 2TN
Licensee:
Licensee’s Address:
Licensee Company No:
Effective Date:
The Project:
The trial or study set out in Schedule 2
Software:
The software described in Schedule 1
Supporting Materials:
The materials described at Schedule 4
System:
[the Licensee’s computer system] [a single computer at
the Licensee’s premises]
Term:
1 year from the Effective Date
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PART B - GENERALCONDITIONS
1.
DEFINITIONS AND INTERPRETATION
1.1
In this Agreement except where the context otherwise requires the following terms
shall have the following meanings:
Improvements: all additions, improvements, adaptations to any part of the Software and/or
the Information coming into existence or acquired during the term of this Agreement.
Information: information owned or licensed by the Licensor and obtained by the Licensee
relating to the Software including without limitation a) any know-how, techniques, ideas and
concepts underlying the Software and/or b) the Supporting Materials and any trade secrets
relating thereto.
Intellectual Property Rights: all patents, rights to inventions, copyrights, design rights,
trade marks, trade secrets, know-how, database rights and other rights in the nature of
intellectual property rights (whether registered or unregistered) and all applications for the
same, anywhere in the world.
Non-Severable Improvements: any Improvement which if used or practiced without licence
from the Licensor would infringe any Intellectual Property Rights in the Software and/or
Information.
Permitted Users: the individual users of the Software listed in Schedule 3 and any other
users of the Software notified by the Licensee to Licensor in writing.
Severable Improvements: and Improvement which if used or practised without licence from
the Licensor would not infringe any Intellectual Property Rights in the Software and/or
Information.
1.2
In this Agreement (except where the context otherwise requires):
1.2.1
The headings in this Agreement do not affect its interpretation.
1.2.2
any reference to a Recital, Clause or Schedule is to the relevant Recital, Clause or
Schedule of or to this Agreement and any reference to a sub-clause or paragraph is to the
relevant sub-clause or paragraph of the Clause or Schedule in which it appears.
1.2.3
use of the singular includes the plural and vice versa;
2.
LICENCE
2.1
Subject to the restrictions and conditions in clause 2.2 below, the Licensor grants to the
Licensee a non-exclusive licence for the Term to use the Software and the Information for
the Project.
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2.2
In the event that the results of the project are published, the user shall cite the following in
the reference section of the publication:
Carlton J. Clinicians’ perspectives of health related quality of life (HRQoL) implications of
amblyopia: a qualitative study. Br Ir Orthopt J 2011;8:18-23
Carlton J. Identifying Potential Items for the Child Amblyopia Treatment Questionnaire.
Optom Vis Sci (accepted).
It is requested that copies of all published papers and abstracts using CAT-QoL be sent to
Jill Carlton.
2.2
In relation to scope of use:
(a) for the purposes of clause 2.1, use of the Software and the Information by the Licensee
shall be restricted to use of the Software and the Information on the System by the
Permitted Users in relation to the Project (which shall not include allowing the use of the
Software and the Information by any person other than the Permitted Users). For the
avoidance of doubt the Licensee may not use Software and/or the Information nor allow
any third party to use the Software and/or Information other than in relation to the
Project.
(b) the Licensee may not use the Software and/or the Information other than as specified in
clause 2.2(a) without the prior written consent of Licensor and the Licensee
acknowledges that additional fees may be payable on any change of use approved by
Licensor;
(c) the Licensee may make as many back-up copies of the Software as may be necessary
for its lawful use. The Licensee shall record the number and location of all copies of the
Software and the Information and take all necessary steps to prevent unauthorised
copying;
(d) the Licensee will not incorporate the Software into any program or any commercial
product without the prior written consent of the Licensor and the Licensee
acknowledges that additional fees may be payable as a condition of any such consent
(e) the Licensee will not make the Software and/or the Information available over a network
or allow remote access to the Software and/or Information.
(f)
the Licensee will not without the prior written consent of the Licensor load all or any part
of the Software on any computer or computer system other than the System
(g) the Licensee shall effect and maintain adequate security measures to safeguard the
Software and the Information from access or use by any unauthorised user.
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(h) the Licensee shall ensure that only Permitted Users have access to the Software and
the Information and that such Permitted Users are made aware of the restrictions
imposed on the use of the Software and the Information by this Licence.
(i)
except as stated in this clause 2, the Licensee has no right (and shall not permit any
third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or
make error corrections to the Software in whole or in part.
2.3
the Licensee has no right to sub-license or to assign the benefit or burden of this Agreement
in whole or in part, or to allow the Software and/or the Information to become the subject of
any charge, lien or encumbrance without the prior written consent of Licensor.
2.4
the Licensee shall not and shall procure that the Permitted Users shall not publish, distribute
or otherwise disclose the Software and/or the Information or any source code, software
routines or methods (or any part of them) which comprise the Software to any third party.
2.5
The Licensee shall permit Licensor to inspect and have access to any premises, and to the
computer equipment located there, at or on which the Software is being kept or used, and
any records kept pursuant to this Agreement, for the purposes of ensuring that the Licensee
is complying with the terms of this Agreement, provided that Licensor provides reasonable
advance notice to the Licensee of such inspections, which shall take place at reasonable
times.
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FEES
3.1
The Licensee shall pay to Licensor the Fee on signature of this Agreement.
3.2
All amounts in the payable are exclusive of VAT (or like) which will be payable in addition if
applicable and all amounts shall be paid gross without deduction of any withholding or other
income taxes and if subject to withholding or other income taxes the Licensee shall ensure
that such sum is paid to the Licensor as shall, after deduction of such withholding or other
income tax, be equivalent to the amount otherwise payable under this Agreement.
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LICENSOR’S WARRANTIES AND LIMITS OF LIABILITY
4.1
The Licensor cannot be responsible for any use of the Software or Information by the
Licensee. Accordingly no representations, conditions, warranties or other terms of any kind
are given in respect of the Software or the Information. All conditions, warranties or other
terms which might have effect between the parties or be implied or incorporated into this
Agreement or any collateral contract, whether by statute, common law or otherwise, are
hereby excluded, including, without limitation, the implied conditions, warranties or other
terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
4.2
Save for death and personal injury caused by the Licensor’s negligence, the Licensor shall
have no liability of any kind to the Licensee in respect of the Software and/or Information.
4.3
Without prejudice to clause 4.2 the Licensor shall have no liability for any losses or
damages which may be suffered by the Licensee (or any person claiming under or through
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the Licensee), whether the same are suffered directly or indirectly or are immediate or
consequential, which fall within the following categories:
a) special damage even though Licensor was aware of the circumstances in which such
special damage could arise
b) loss of profits, anticipated savings, business opportunity or goodwill; and
c) any data loss or corruption. The Licensee agrees that it has sole responsibility for
protecting its data during its use of the Software.
4.4
In the event that the Licensor shall be found liable to the Licensee for any reason other than
death or personal injury caused by the Licensor’s negligence, the sums payable to the
Licensee in respect of such liability shall not exceed two times the Fee. In the event that no
Fee was paid, the sum shall not exceed £10,000.
4.5
The exclusions in clause 4 shall apply to the fullest extent permissible at law, but Licensor
does not exclude liability for death or personal injury caused by the negligence of Licensor,
its officers, employees, contractors or agents for fraud, or any other liability which may not be
excluded by law.
4.6
The Licensee shall, at all times, indemnify and keep indemnified the Licensor against all or
any costs, claims, loss, damages or expenses incurred by the Licensor, or for which the
Licensor may become liable as a result of any breach of the terms of this Agreement by the
Licensee.
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INTELLECTUAL PROPERTY RIGHTS
5.1
The Licensee acknowledges that all Intellectual Property Rights in the Software and the
Information belong to Licensor, and the Licensee shall have no rights in or to the Software
and/or the Information other than the right to use it in accordance with the terms of this
Agreement.
5.2
Ownership of all complete or partial copies of the Software and the Information shall at all
times remain with the Licensor. The Licensee agrees to mark any copies of the Software
and/or the Information which it may make in any tangible medium with a notice that such
copy belongs to the Licensor.
5.3
In the event that the Licensee is notified by a third party that that party claims rights in the
Software and/or the Information or that use of the Software and/or the Information infringes
any right of that third party, the Licensee agrees to immediately notify the Licensor and, at
the Licensee’s request, to immediately cease use of the Software and/or the Information.
5.4
The Licensee shall promptly disclose to the Licensor in such detail as the Licensor may
reasonably require details of all Improvements that it may develop or acquire during the
Term.
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5.5
Non-Severable Improvements that the Licensee discloses to the Licensor pursuant to clause
5.4 shall be assigned to the Licensor and shall be the exclusive property of the Licensor
provided however that Non-Severable Improvements assigned to the Licensor pursuant to
this clause 5.5 shall be deemed to be part of the Software and the license granted pursuant
to clause 2.
5.6
The Licensee shall grant to the Licensor a non-exclusive, royalty-free, perpetual licence to
use any Severable Improvements disclosed by the Licensee to the Licensor pursuant to
clause 5.4
5.7
The Licensee shall sign all such documents and do all such acts as the Licensor may
reasonably require to put into effect Clause 5.5 and 5.6.
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CONFIDENTIALITY
6.1
In consideration of the disclosure by the Licensor to the Licensee of the Software and the
Information the Licensee undertakes that it will receive and hold the Software and the
Information in the strictest of confidence. The Licensee shall not without the prior written
consent of the Licensor:
6.1.1
communicate or otherwise make available the Software and/or the Information to any
third party; or
6.1.2
use the Software and/or Information other than in accordance with the terms of this
Agreement;
6.1.3
copy, adapt, or otherwise reproduce the Software and/or Information save as in
accordance with the terms of this Agreement.
6.2
The Licensee may disclose the Software and Information or any part thereof to any
Permitted User who needs access to the Software and the Information in connection with the
Project. In such an event the Licensee agrees to ensure, prior to such disclosure, that the
Permitted User in question is made aware of the confidential nature of the Software and
Information and understands that he/she is bound by conditions of secrecy no less strict than
those set out here. The Licensee agrees to monitor the use of the Software and Information
by these Permitted Users and to enforce their obligations of confidence at the request of the
Licensor.
6.3
Each party shall, during the term of this Agreement and thereafter, keep confidential all, and
shall not use for its own purposes nor without the prior written consent of the other disclose
to any third party any information of a confidential nature (including, without limitation, trade
secrets and information of commercial value) which may become known to such party from
the other party.
6.4
The obligations contained in this clause 6 shall not apply, or shall cease to apply, to such
information as can be shown by the Licensee to the reasonable satisfaction of the Licensor:
6.4.1
has become public knowledge other than through the fault of the Licensee or an
employee or director of the Licensee
6.4.2
was already known to the Licensee prior to disclosure to it by the Licensor; or
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6.4.3
has been received from a third party who neither acquired it in confidence from the
Licensor, nor owed the Licensor a duty of confidence in respect of it.
6.5
The provisions of this Clause 6 shall remain in full force and effect notwithstanding
termination of this Agreement for any reason.
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TERMINATION
7.1
Either party may terminate this Agreement at any time on written notice to the the other party
if the other party:
7.1.1
is in material or persistent breach of any of the terms of this Agreement and either that
breach is incapable of remedy, or the other party fails to remedy that breach within 30
days after receiving written notice requiring it to remedy that breach; or
7.1.2
is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986),
or becomes insolvent, or is subject to an order or a resolution for its liquidation,
administration, winding-up or dissolution (otherwise than for the purposes of a solvent
amalgamation or reconstruction), or has an administrative or other receiver, manager,
trustee, liquidator, administrator or similar officer appointed over all or any substantial part
of its assets, or enters into or proposes any composition or arrangement with its creditors
generally, or is subject to any analogous event or proceeding in any applicable
jurisdiction.
7.2
Termination by Licensor in accordance with the rights contained in this clause 7 shall be
without prejudice to any other rights or remedies of either party accrued prior to termination.
7.3
Any provision of this Agreement which expressly or by implication is intended to continue in
force on or after termination of this Agreement including without limitation the obligations in
clause 6 shall remain in full force and effect.
7.4
On termination for any reason:
7.4.1
all rights granted to the Licensee under this Agreement shall cease;
7.4.2
the Licensee shall cease all activities authorised by this Agreement;
7.4.3
the Licensee shall immediately destroy or return to Licensor (at Licensor’ option) all
copies of the Software and the Information then in its possession, custody or control and,
in the case of destruction, certify to Licensor that it has done so.
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FORCE MAJEURE
No party shall be liable to the other for any delay or non-performance of its obligations under
this Agreement arising from any cause beyond its control including, without limitation, any of
the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For
the avoidance of doubt, nothing in this clause 8 shall excuse the Licensee from any payment
obligations under this Agreement
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WAIVER
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the
rights of that party, and no waiver of any such rights or of any breach of any contractual
terms shall be deemed to be a waiver of any other right or of any later breach.
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SEVERABILITY
If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in
full force and effect of the remainder of the provisions shall not be prejudiced.
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AMENDMENTS
Any amendment, waiver or variation of this Agreement shall not be binding on the parties
unless set out in writing, expressed to amend this Agreement and signed by or on behalf of
each of the parties.
12
THIRD PARTY RIGHTS
No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any
person who is not a party to this Agreement.
13
NOTICES
Any notice required to be given pursuant to this agreement shall be in writing, and shall be
sent to the other party marked for the attention of the person at the address set out for such
party in this Agreement. Notices may be sent by first-class mail or fax, provided that faxes
are confirmed within [24 hours] by first-class mailed confirmation of a copy. Correctly
addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours
after posting and correctly directed faxes shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in this clause 13.
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ENTIRE AGREEMENT
This Agreement, the annexes and the documents annexed as appendices to this Agreement
or otherwise referred to herein contain the whole agreement between the parties relating to
the subject matter hereof and supersede all prior agreements, arrangements and
understandings between the parties relating to that subject matter.
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GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with English law and
each party hereby submits to the non-exclusive jurisdiction of the English courts.
This Agreement has been entered into on the date stated at the beginning of it.
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