WP Media Manager License Agreement
This licence has been entered into on [XXth January 2019]
- OTB CONSULTING LTD t/a Digital Elite incorporated and registered in England and Wales with company number 08247917 whose registered office is at 22 Vincent Road, Cobham, Surrey, KT11 3JB (Supplier)
- [COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (together, being “you”/”your”/”yourselves”). (Customer)
In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence to use the Software for the purposes of Customers file storage within WordPress for the agreed Term.
Except as expressly stated herein, the Customer 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 except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
The Customer may not use any such information provided by the Supplier or obtained by the Customer to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
The Customer shall not, without the prior written consent of the Supplier:
- sub-license, assign or novate the benefit or burden of this licence in whole or in part;
- allow the Software to become the subject of any charge, lien or encumbrance; and
- deal in any other manner with any or all of its rights and obligations under this agreement,
The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
The Customer shall notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person.
The Customer shall permit the Supplier 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 have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
The Customer shall pay to the Supplier licence fees of the amount as agreed between the parties.
All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, the Supplier may terminate this agreement immediately.
Confidentiality and publicity
Each party shall, during the term of this licence and thereafter, keep confidential all information, and shall not use for its own purposes (other than implementation of this licence) 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 or any of its Affiliates, unless that 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 this licence, 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.
No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
Limits of liability
the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
- special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
- loss of profits;
- loss of anticipated savings;
- loss of business opportunity;
- loss of goodwill;
- loss or corruption of data
the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee.
Intellectual property rights
The Customer acknowledges that all Intellectual Property Rights in the Software and any maintenance releases belong and shall belong to the Supplier and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
Duration and termination
Without affecting any other right or remedy available to it, either party may terminate this agreement by giving 30 days written notice to the other party.
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
On termination for any reason:
- all rights granted to the Customer under this licence shall cease;
- the Customer shall cease all activities authorised by this licence;
- the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
- the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
This licence contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter.
Customer agrees that the only rights and remedies available to it arising out of or in connection with Supplier’s breach shall be for breach of contract.
Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives)
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute one agreement.
A person who is not a party to this agreement shall not have any rights 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 that Act.
No partnership or agency
Nothing in this agreement is intended to, or shall be deemed to establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
Any notice given to a party under or in connection with this contract shall be in writing and shall be deemed received:
- if sent by email, at 9:00 on the next Business Day after transmission
- if sent by courier, at 9:00 on the next Business Day after posting.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
Governing law and jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims)
The definitions and rules of interpretation in this clause apply in this licence.
Affiliates: includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
Fee: the licence fee payable by the Customer to the Supplier under clause 5.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Open-Source Software: open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
Site: the premises from which the Customer carries out its business [as stated above or] as notified to the Supplier in writing from time to time.
Software: the WP Media Manager WordPress plugin, as further detailed at www.mywpmedia.com
Term: Shall mean the period commencing on signature of this Agreement and expiring on termination of this Agreement by either party.
Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
Unless the context otherwise requires:
- words in the singular shall include the plural and in the plural shall include the singular;
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time OR it is in force as at the date of this agreement];
- a reference to one gender shall include a reference to the other genders; and
- any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
The Schedules and Annexes form part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedules and Annexes.