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Software License Agreement


SOFTWARE LICENCE AGREEMENT

TABLE SENSE TECNOLOGIES LTD

THIS LICENCE IS GRANTED BY:

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TABLE SENSE TECHNOLOGIES LTD, a company incorporated in Scotland with registered number SC735042 whose registered office is at C/O Turcan & Connell, Princess Exchange, 1 Earl Grey Street, Edinburgh, EH3 9EE (the "Supplier")

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In favour of you, the “Customer”.

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By proceeding to use the Software (as hereinafter defined) you are deemed to accept and will be subject to the terms of this licence.

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BACKGROUND

The Supplier is the entire legal and beneficial owner and supplier of certain software products relating to an online restaurant booking system, the particulars of which are listed in Schedule 1. The Supplier is willing to license the Customer to use these products.

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AGREED TERMS
  • 1. Interpretation
    • 1.1 The definitions and rules of interpretation in this clause apply in this licence.
      • "Affiliate": includes any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
        “Applicable Data Protection Legislation”: means all laws relating to data protection and privacy which are from time to time applicable to the parties, including: (i) the Data Protection Act 1998 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (ii) the GDPR and all related national laws, regulations and secondary legislation, including the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC, including where applicable the guidance and codes issued by the Information Commissioner or other appropriate supervisory authority;
        "Business Day": a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
        “Diner Information”: means the personal information of the Customer’s customers, including (without limitation) names, preferences and other information about the customers’ bookings using the Software.
        "Fee": the licence fee payable by the Customer to the Supplier under clause 2.1.
        "Holding company": and subsidiary have the meaning as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
        "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.
        "Licence": the licence granted under clause 2.3 and clause 2.5.
        "Modification": any change made to the Software by either the Supplier or the Customer.
        "Relevant Services": any services (including the services of consultant programmers, system maintainers, outsourcing, or disaster recovery or other service suppliers) which are provided to the Customer or any Affiliate for the purpose of, or in connection with, the permitted use, development, modification or maintenance of the Software.
        "Software": the computer programs listed in Schedule 1 and all user documentation in respect of such programs and any Modification which is acquired by the Customer during the subsistence of this licence.
        "Source Code Materials": the source code of the Software and all technical information and documents required to enable the Customer to modify and operate the Software.
    • 1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
    • 1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
    • 1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
    • 1.5 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.
    • 1.6 In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedule, the provision in the body of this licence shall take precedence.
    • 1.7 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
    • 1.8 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.
    • 1.9 References to clauses and Schedules are to the clauses and Schedule of this agreement and references to paragraphs are to paragraphs of the Schedule.
    • 1.10 The Schedule forms part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedule.
  • 2. Interpretation
    • 2.1 The licence fee shall be as agreed between the Supplier and the Customer in writing (which, for the avoidance of doubt, shall include email).
    • 2.2 All sums payable under this licence are exclusive of VAT, which shall be charged in accordance with the relevant local regulations in force at the time of making the relevant taxable supply and shall only be payable by the Customer after receipt of a valid VAT invoice.
    • 2.3 In consideration of the Customer's obligation to pay the Fee under clause 2.1, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer and its Affiliates a non-exclusive licence to use the Software on a rolling monthly basis (unless otherwise agreed in writing between the parties) commencing on, and including, the date of issue of this licence, until terminated in accordance with this licence.
    • 2.4 For the avoidance of doubt, the terms of this licence shall apply during any period in which the Software is provided to the Customer on a free-trial basis.
    • 2.5 The Supplier is under no obligations to provide the Customer with any updates to, or new versions of (“Upgrades”), the Software. If the Supplier does provide Upgrades, the Customer’s use of the Upgrade will be subject to this license from the time of the Upgrade being made available.
    • 2.6 In relation to scope of use for the purposes of clause 3.3 above, "use" of the Software shall be restricted to use of the Software for the normal business purposes of the Customer.
    • 2.7 The Customer shall not:
      • 2.7.1 sub-license, assign or novate the benefit or burden of this licence in whole or in part;
      • 2.7.2 allow the Software to become the subject of any charge, lien or encumbrance; and
      • 2.7.3 deal in any other manner with any or all of its rights and obligations under this agreement,
      • 2.7.4 copy, adapt, reverse engineer, decompile, modify or adapt the Software in whole or in part, without the prior written consent of the Supplier.
    • 2.8 The Supplier may at any time 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.
    • 2.9 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
    • 2.10 Notwithstanding clause 3, if assigning any or all of its rights under this agreement, the Supplier may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 2.9 shall be made until notice of the identity of the proposed assignee has been given to the other party.
  • 3. Confidentiality and publicity
    • 3.1 Subject to clause 3.2 party agrees to, during the term of this licence and thereafter, keep confidential, 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 such 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.
    • 3.2 Notwithstanding clause 3.1, the Supplier may refer to the Customer or this licence in any publicity or advertising material without first obtaining the Customer's written consent.
  • 4. Data Protection
    • 4.1 For the purposes of this clause 4, the terms controller and processor shall have the meaning given to them in the Data Protection Act 2018.
    • 4.2 The parties have determined that, for the purposes of the Applicable Data Protection Legislation, the Customer shall act as joint controller of the Diner Information and the Supplier shall act as processor and joint controller of the Diner Information
    • 4.3 Both parties will comply will all applicable requirements of the Applicable Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Applicable Data Protection Legislation.
    • 4.4 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of Applicable Data Protection Legislation, and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
    • 4.5 Each party undertakes:
      • 4.5.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
      • 4.5.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Applicable Data Protection Legislation.
    • 4.6 The Customer agrees that the Supplier shall be entitled to use Diner Information in any manner the Supplier deems appropriate (subject always to Applicable Data Protection Legislation) at the Supplier’s own risk.
  • 5. Supplier's warranty
    • The Supplier warrants that it has the right to enter into this licence and to grant to the Customer a licence or sub-licence to use the Software as contemplated by this licence.
  • 6. Limitation of liability
    • 6.1 Subject to clause 6.3, neither party shall in any circumstances have any liability for any losses or damages which may be suffered by the other or any Affiliate of the other (or any person claiming under or through the same), whether the same are suffered directly or indirectly or are immediate or consequential, which fall within any of the following categories:
      • 6.1.1. special damage even though that party was aware of the circumstances in which such special damage could arise;
      • 6.1.2. loss of profits;
      • 6.1.3. loss of anticipated savings;
      • 6.1.4. loss of business opportunity and management time;
      • 6.1.5. loss of goodwill,
    • 6.2 Subject to clause 6.3, the total liability of the Supplier, whether in contract, delict (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 amount paid under this license.
    • 6.3 The exclusions in clause 6.1 shall apply to the fullest extent permissible at law but neither party excludes any liability for death or personal injury caused by its negligence, or the negligence of its employees or agents, or for fraud or fraudulent misrepresentation or the deliberate default or wilful misconduct of that party, its employees or agents or subcontractors.
  • 7. Termination
    • 7.1 This licence may be terminated only:
      • 7.1.1 by the Customer at any time by one month's written notice to the Supplier;
      • 7.1.2 by the Supplier, either:
        • 7.1.2.1 by one month’s written notice to the Customer; or
        • 7.1.2.2 immediately by written notice to the Customer if the Customer fails to pay the fee in accordance with clause 2.1.
    • 7.2 Termination of this licence by either party in accordance with the rights contained in clause 7.1.1 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
    • 7.3 On termination or expiry of this agreement, the following clauses shall continue in force: clause 1, clause 3, clause 6 and this clause 7 and Schedule 1.
    • 7.4 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.
  • 8. Waiver
    • 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.
  • 9. Rights and remedies
    • 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.
  • 10. Entire agreement
    • 10.1 This licence, the schedule and the documents annexed as appendices to this licence and, 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.
    • 10.2 Each party acknowledges that, in entering into this agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) ("Representation") other than as expressly set out in this agreement or those documents.
    • 10.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
  • 11. Variation
    • No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  • 12. Severance
    • 12.1 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.
    • 12.2 If any provision or part-provision of this agreement is deemed deleted under clause 12.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  • 13. Counterparts
    • This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
  • 14. Third-party rights
    • A person who is not a party to this agreement shall not have any rights under the Contracts (Third Party Rights) (Scotland) Act 2017 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.
  • 15. No partnership or agency
    • 15.1. 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.
    • 15.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  • 16. Notices
    • 16.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
      • 16.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      • 16.1.2 ent by email to its main email address.
    • 16.2 Any notice or communication shall be deemed to have been received:
      • 16.2.1 if delivered by hand, at the time the notice is left at the proper address;
      • 16.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
      • 16.2.3 if sent by email, at 9.00 am on the next Business Day after sending.
    • 16.3 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 e-mail.
  • 17. Governing law and jurisdiction
    • 17.1 This licence 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 Scotland.
    • 17.2 The parties irrevocably agree that the courts of Scotland 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).

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