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Oasys Standard Terms and Conditions
Last updated 2nd February 2008
The Oasys Standard Terms and Conditions comprise two parts, the "Oasys Software Licence Agreement" which applies in all cases, and the "Oasys Software Support and Maintenance Agreement" which only applies where Oasys are in receipt of maintenance and support fees covering the period
Oasys Software Licence Agreement
| 1 | DEFINITIONS |
| 1.1 | 'Licence Agreement' shall mean this document. |
| 1.2 | 'Licensee' shall be the individual or company purchasing the Licence Agreement |
| 1.3 | 'Oasys' shall be Oasys Limited and their successors or assigns. |
| 1.4 | 'Software' shall mean licences of Oasys computer program/s purchased under this agreement and shall include any replacements, modifications or additions supplied under this Licence Agreement (but shall not include any upgrades unless agreed by Oasys. |
| 1.5 | 'User' shall mean an employee of the Licensee who exercises a right of access to a copy of the Software. |
| 1.6 | 'Owner' shall mean the supplier organisation that owns the rights to the software and/or software component, and shall include its suppliers |
| 2 | AGREEMENT |
| This Agreement shall commence on the date of receipt of payment by Oasys and continue unless and until terminated in accordance with the provisions of this Agreement. |
| 3 | EXCLUSIONS |
| 3.1 |
In respect of loss or damage arising out of or in any way connected with this Agreement and howsoever caused (whether by negligence or otherwise) i. Oasys shall not be liable for (a) special, indirect or consequential loss (b) loss arising out of any delay or loss of time, production, profit, revenue or use. ii. The liability of Oasys shall not in any event exceed in aggregate the sum of £100,000. Saving that nothing in this Agreement shall limit or exclude Oasys' liability for death or personal injury resulting from negligence. |
| 3.2 | This Licence Agreement only covers usage of the Software in the country stated at the time of purchase. The Software may not be used in any other country. |
| 3.3 | Except where each instance of the Software in use is covered by a fully paid valid Licence, usage of terminal software such as Terminal Services and Citrix to enable multiple users to share the Software is strictly forbidden. |
| 4 | ACCEPTANCE |
| 4.1 | The Licensee is encouraged to test the Software's suitability prior to purchase of any Licences. Acceptance is deemed to take place on purchase of the Licence. |
| 4.2 | Oasys undertakes for software it develops itself, that provided it is operated in accordance with the instructions contained in the documentation supplied with the Software, the Software will perform as stated in the documentation supplied with the Software. Oasys does not guarantee that the Software is free of minor errors not materially affecting such performance. The undertaking given in this Sub-Clause is in lieu of any condition or warranty express or implied by law as to the quality or fitness for any purpose of the Software. Oasys does not warrant or represent nor is it a condition of this Agreement that the functions contained in the Software will meet the Licensee's requirements or will operate in the combinations including any other hardware or software which may be selected for use by the Licensee or its customers or that the operation of the constituent parts of the Software will be uninterrupted or free of errors or that all errors will be corrected. All other conditions, warranties and representations express or implied by statute, common law or otherwise in relation to the Software are excluded by Oasys, to the fullest extent permitted by law. |
| 5 | LICENCE |
| 5.1 | Subject to Licensee's payment of Oasys fees and compliance with this Agreement, Licensee is granted a non-exclusive and non-transferable licence to use the Software strictly in accordance with the terms of this Agreement. All intellectual property rights and title to the Software shall remain with the Owner and no interest or ownership therein is conveyed to Licensee under this Agreement. No right to modify, adapt, or translate the Software or create derivative works therefrom is granted to Licensee. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that Licensee has any right to obtain source code for the Software. |
| 5.2 | Licensee may not, without the prior written consent of Oasys: |
| 5.2.1 | lease, loan, resell or otherwise distribute the Software |
| 5.2.2 | except as permitted in this Agreement, permit access to or use of the Software by or on behalf of any third party. |
| 5.2.3 | use the Software on more computers than the total number of Licences purchased, or where a network Licence has been purchased, enable more concurrent users of the software than the total number of network Licences owned. |
| 5.3 | Licensee shall indemnify Oasys and keep Oasys fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with; |
| 5.3.1 | any breach by Licensee of this Clause 5; or |
| 5.3.2 | a breach of copyright or other intellectual property or proprietary right, or a breach of confidence by the Licensee, his servants, agents, employees and contractors. |
| 5.4 | Third parties to the Licensee may make use of the Software so long as it is used solely whilst connected to the Licensee's computer network or if not connected to the network, whilst on the Licensee's premises. Licensee shall ensure that such third parties shall adhere to the terms of this licence |
| 6 | MODIFYING |
| The Licensee may not, without the prior written consent of Oasys, modify, reverse engineer or decompile (except to the extent permitted by law) the Software or incorporate the Software in programs not provided by Oasys. |
| 7 | TERMINATION |
| 7.1 | Oasys may terminate this Agreement (including for the avoidance of doubt the licence at clause 5) forthwith by notice in writing: |
| 7.1.1 | if the Licensee shall have committed a breach of its obligations hereunder which is capable of remedy and which shall remain unremedied thirty days after notice of such breach has been served by Oasys on the Licensee. |
| 7.1.2 | if the Licensee shall have committed any breach of its obligations hereunder which is not capable of remedy. |
| 7.1.3 | if the Licensee being an individual shall be declared bankrupt or being a company shall be declared insolvent or a receiver be appointed or shall go into liquidation save for the purpose of amalgamation or reconstruction or a charging order shall be made over any of its assets. |
| 8 | OWNERSHIP |
| 8.1 | The Software and all intellectual and proprietary rights in the Software are owned by the Owners, and its structure, organisation and code are the valuable trade secrets of the Owners. The Licensee shall follow all reasonable instructions given by Oasys from time to time with regard to the use of trade marks owned by the Owners and rights of the Owners. |
| 8.2 | All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, data, text, and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Oasys Ltd or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Licence grants you no rights to use such content. The Licensee hereby covenants not to permit the removal or deletion of any copyright notice which may be endorsed on the Software or the accompanying documentation |
| 8.3 | Oasys have secured sufficient rights to grant the licences herein |
| 9 | ASSIGNMENT |
| The Licensee shall not assign any of its rights or obligations under this Agreement without the prior written consent of Oasys. |
| 10 | FORCE MAJEURE |
| Neither party shall be liable for failure to perform its obligations under this Agreement if such failure results from circumstances beyond the party's reasonable control. |
| 11 | WAIVER |
| No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of the party under this Agreement. |
| 12 | ENFORCEMENT |
| If any term or provision or any part thereof contained herein shall be held to be illegal or unenforceable under any enactment or rule of law, such term or provision or part thereof shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected thereby. |
| 13 | PUBLICITY |
| Oasys may, without the prior written consent of the Licensee, advertise or publicly announce that they are providing services to the Licensee. |
| 14 | COMPLETE AGREEMENT |
| This Agreement is the complete and exclusive statement of the agreement between the parties which supersedes all proposals or prior agreements oral or written and save as expressly set forth herein all representations conditions or warranties express or implied statutory or otherwise are excluded. |
| 15 | NOTICES |
| Any notice to be given hereunder shall be delivered or sent by recorded delivery first class mail to the registered office in the case of Oasys or the Licensee if a corporation or to his usual or last known place of residence if the Licensee is an individual or firm and any such notice shall be deemed to have been served when delivered at the time of delivery or when so mailed at the expiration of 24 hours after the envelope containing the same was put into the mail and in providing such service it shall be sufficient to prove that the envelope containing the same was properly addressed and mailed as a prepaid recorded delivery letter. |
| 16 | LAW |
| This Agreement shall be governed by the laws of England and Wales. No term of this agreement confers on any third part any benefit or any right to enforce any term of this Agreement. |
Oasys Software Support and Maintenance Agreement
| 1.1. | DEFINITIONS |
| "Supported Software" shall mean licences of Oasys software products purchased under this agreement. | |
| "Annual Support Fee" shall mean the then current annual fee payable by the Customer to Oasys for provision of the support services. | |
| "Customer" shall mean the person or organisation that purchases the Support Services under this agreement. | |
| "Effective Date" shall be the date of receipt of the Annual Support Fee. | |
| "Oasys" shall be Oasys Limited and their successors or assigns. | |
| "Customer Contact" shall mean the person or persons nominated by the Customer, who are employed by the Customer and designated to be the contact for any Response. Up to two named contacts are permitted per agreement, a primary contact and a backup contact for situations, such as sickness where the primary contact is unavailable. | |
| "Response" shall mean a reply from Oasys to the Customer Contact, including but not restricted to, response via an Oasys Internet forum, telephone, email or fax. | |
| "Support Services" shall mean those services referred to in clause 3 | |
| 2. | TERM AND TERMINATION |
| 2.1. | The initial term of this contract is one year, beginning upon the Effective Date. |
| 2.2. | Either party may terminate this contract if the other party commits a material breach of its terms, which is not cured within sixty (60) days after written notice of such breach. In the event of such a breach by Oasys, and a valid termination by the Customer, the Customer shall be entitled to the pro-rated refund of any unexpired portion of the Annual Support Fee. |
| 3. | SCOPE OF THE CONTRACT |
| 3.1. | Oasys agrees to provide the following Support Services to the Customer under this contract: |
| 3.1.1. | Technical advice on the use of the Supported Software, delivered by such means as Oasys deem appropriate at the time. This may include but is not restricted to, telephone, email, fax and Internet based communication. In order to provide a flexible service, Oasys reserves the right to change its support delivery methods without notice. |
| 3.1.2. | Oasys shall endeavour to respond and resolve a problem within 24 hours; however in giving response, a solution to the problem in question cannot be guaranteed. |
| 3.1.3. | If an issue cannot be resolved by first line support it will be escalated to second line support. Oasys will use reasonable endeavours to keep the Customer Contact informed of progress throughout this process. If second line support cannot resolve the issue then it will be passed to Oasys development staff. When a problem is considered mission critical, Oasys will make best endeavours to issue an "Emergency Patch" to resolve the problem. |
| 3.1.4. | Oasys will make reasonable efforts to ensure that the skill levels of the staff providing the support and escalations are commensurate with the competence needed to resolve the service request. |
| 3.1.5. | Support Services will only be provided to the Customer Contact. |
| 3.1.6. | The Customer must ensure that the Customer Contact is a competent and knowledgeable user of the Supported Software. |
| 3.1.7. | For the duration of this agreement, Oasys will provide the Customer with upgrades to the Supported Software free of charge. |
| 3.1.8. | Customer may transfer the licence to another computer on two occasions in any 12-month term of the agreement. Additional transfers thereafter will incur a licence transfer fee at the then-current rate. |
| 4. | SUPPORTED SOFTWARE VERSIONS |
| 4.1. | Oasys will provide Support Services for the current version of the Supported Software. Oasys will not support superseded versions of the Supported Software once a new version has been available for six (6) months. |
| 4.2. | In the event of Oasys changing its policy to support a major operating system for use of the Supported Software, Oasys shall continue to provide support for the Supported Software on the deselected operating system for a minimum of 6 months from the date of notice of deselecting of the operating system, to allow the Customer to migrate to a supported operating system. |
| 4.3. | The transfer of licences between the Customer's computers shall be limited to the current version of the Supported Software. Oasys may at their sole discretion provide licence transfers for superseded versions of the Supported Software, however they are under no obligation to do so and may require the Supported Software to be upgraded to the most current version before a transfer can be undertaken. Subject to Clause 3.1.8, any associated costs or expenses relating to required upgrades or to the transfer of licences shall be borne by the Customer. |
| 5. | LIMITATIONS |
| 5.1. | Oasys is not obliged to provide Support Services when any of the following occurrences is the cause of the request for Support Services:- |
| 5.1.1. | Malfunction of hardware or operating system software. |
| 5.1.2. | Negligence by the Customer. |
| 5.1.3. | The Customer changes to an un-supported operating system. |
| 5.1.4. | A Customer Contact is deemed by Oasys to be insufficiently competent with the Supported Software for the issue to be tackled effectively. |
| 5.1.5. | Where the problem is caused by third party applications that have not been developed by Oasys. |
| 5.2. | Oasys will not, under this agreement provide any consultancy advice including, but not limited to, best-practice technical advice, data conversion, engineering advice. |
| 5.3. | This agreement does not cover on-site installation or on-site support. |
| 6. | EXCLUSIONS |
| In respect of loss or damage arising out of or in any way connected with this Agreement and howsoever caused (whether by negligence or otherwise) | |
| 6.1. | Oasys shall not be liable for (a) special, indirect or consequential loss (b) loss arising out of any delay or loss of time, production, profit, revenue or use. |
| 6.2. | The liability of Oasys shall not in any event exceed in aggregate the sum of £100,000. Saving that nothing in this Agreement shall limit or exclude Oasys' liability for death or personal injury resulting from negligence. |
| 6.3. | This agreement only covers usage of the Supported Software in the country stated at the time of purchase. |
| 7. | ASSIGNMENT |
| This agreement may not be assigned or otherwise transferred by the Customer without the prior written consent of Oasys | |
| 8. | SUPPORT FEES, INVOICES AND PAYMENT AND RENEWALS |
| 8.1. | Oasys reserves the right to change the Annual Support Fee at any time. The changes will not take immediate effect with respect to the existing support agreements, but will be applied at the anniversary/annual renewal of this agreement. The Customer will be advised of any future price changes in a timely manner. |
| 8.2. | A renewal notice will be sent prior to the anniversary date of the current agreement for an additional twelve-month period. The agreement will not continue unless written approval and payment is received by Oasys. |
| 8.3. | The Customer shall be liable to pay any sales or value added tax related to this transaction, however designated. |
| 9. | OTHER PROPOSED TERMS |
| 9.1. | These Oasys standard terms shall exclusively govern the contract between Oasys and the Customer. No terms proposed by the Customer shall have any contractual effect. |
| 10. | LICENSING OF SOFTWARE |
| 10.1. | Prior to the date of this agreement, the Customer shall have accessed relevant Oasys software. The Customer shall be deemed to have read and accepted the Oasys standard terms governing use of such software. |
This agreement shall be governed by the laws of England and Wales. No term of this agreement confers on any third party any benefit or any right to enforce any term of this agreement.
© Oasys Limited 2008. All rights reserved.
