Last updated October 21, 2018. Replaces all prior versions.
Section 1 – Defined Terms
1.1 In this agreement the following terms have the meanings stated, unless the context otherwise requires:
“ACCEPTANCE DATE” the date the Licensee is deemed to have accepted the Licensed Program
Materials in accordance with clause 5.2 below;
“ACTUAL START DATE” the actual date that access to the Licensed Program Materials is provided by the Company in accordance with clause 4 below;
“ADDITIONAL CHARGES” the charges at the Company’s rates from time to time for Additional Services.
“ADDITIONAL SERVICES” such further services as shall be determined from time to time and supplied by the Company with the agreement of the Licensee
“THE COMPANY” RETAILSYSTEM.COM LIMITED (registered number 1633354) whose registered office is at 705-706 CIGB, 141Des Voeux Road, Hong Kong
“DATE COMPLIANT” the ability to:
“DOCUSIGN” the electronic signature process to fully acknowledge all Terms and Agreements between Company and Licensee.
“DISTRIBUTOR” the Exclusive Distributor for Retailsystem in North America
“HARDWARE” if any – the equipment cabling, and systems and software provided by the Licensee to enable the Licensee to access the Internet
“LICENSEE” the company or retailer that enters into and commits to the license agreement as part of the DocuSign Confirmation and acknowledgement process
“LICENSE FEE” the monthly fee for the license and Services set out in the Schedule as the same may be varied in accordance with clause 3.3 below;
“LICENSED PROGRAMS” access to the software known as RETAILSYSTEM including any New Release of the same made or issued pursuant to clause 6 below;
“LICENSED PROGRAM MATERIALS” the Licensed Programs and the Program Documentation;
“NEW RELEASE” any improved modified or corrected version of any of the Licensed Programs or Program Documentation from time to time issued by the Company pursuant to clause 6 below;
“PLACE OF USE” that part of the Licensee’s premises where the Hardware is installed and operated;
“PROGRAM DOCUMENTATION” the user guides and other information to be made available from time to time during this Agreement by the Company at its discretion in either printed or machine-readable form to the Licensee;
“PROGRAM SPECIFICATIONS” the technical specifications from time to time published by the Company in respect of the Licensed Programs;
“SERVICES” the provision of delivery Support and training services in accordance with respectively clauses 4, 6 and 14 below;
“SERVICE DISRUPTION” any disruption in the Services as a result of any failure of the Hardware or the
Company personnel who provide the Services and which does not result from any breach by the Licensee of this agreement or a force majeure event
“START DATE” the estimated date for access to be provided to the Licensed Program Materials
“SUPPORT” the provision of such categories of technical support in accordance with clause 6 below as shall be specified in respect of each of the Licensed Programs in the Schedule;
“USE” the processing and execution functions by the Licensed Programs for the internal business purposes of the Licensee and for the processing of the Licensee’s own data.
Section 2 – Grant of license and provision of services
2.1 The Company in consideration of the payment by the Licensee from time to time of the License Fee in accordance with clause 3 below hereby:
2.1.1 grants to the Licensee a non-exclusive License to Use the Licensed Program Materials upon the Company’s server(s) and to possess and refer to the Program Documentation subject to the terms and conditions of this agreement; and
2.1.2 undertakes to the Licensee to provide the Services (subject always to the Licensee supplying the requisite Hardware to access the Internet) upon the terms and conditions of this agreement.
2.2 The Licensee hereby agrees that the Licensor has been authorized by the Licensee to include disabling software in the Licensed Programs. The Licensor undertakes to deactivate such disabling software so as to permit full working of the Licensed Programs by the Licensee as soon as the Licensee shall have paid all monies due and/or the relevant installment of the License Fee under this Agreement.
2.3 The Licensee shall use the Licensed Program Materials solely for the processing of its own data for its own internal use only. The Licensee shall not permit any third party to use or have access to any part of the Licensed Program Materials nor shall the Licensee use the Licensed Program Materials on behalf of or for the benefit of any third party in any way whatsoever.
Section 3 – Fees
3.1 The License Fee shall include enabling access to and initial training in the use of Retailsystem and any New Release
3.2 The License Fee shall include the cost of the provision of the Services. Initial fees were indicated and agreed to during the initial Sign-up DocuSign process.
3.3 The License Fee shall be levied by the Company monthly in advance with effect from the date falling ten days after the Acceptance Date and shall be payable by the Licensee by direct debit and thereafter on the 15th day of each month.
3.4 The Company shall be entitled to vary the License Fee not more than once in every successive period of 12 months during the currency of this agreement upon giving not less than thirty days’ notice thereof to the Licensee.
3.5 The Company reserves the right to charge the Purchaser interest in respect of the late payment of any sum due under this agreement (as well after as before judgment) at the rate of four per cent per annum above the base rate from time to time of Royal Bank of Scotland plc from the due date therefor until payment.
3.6 The Licensee shall pay to the Company the Additional Charges for any Additional services provided by the Company from time to time
3.7 The Licensee agrees that an e-mail acknowledgement from Licensee to Company is sufficient and binding to any requested add-ons or additional service fees for items or services requested by Licensee.
Section 4 – Delivery
4.1 The Company shall use all reasonable endeavors (subject always to the Licensee providing adequate Hardware and internet service) to enable access to RETAILSYSTEM and to deliver one copy of the Program Documentation to the Licensee on the Start Date or as soon thereafter as is possible.
4.2 If the Company shall fail to enable access to the RETAILSYSTEM within thirty days of the Delivery Date the Licensee shall be entitled to either:
4.2.1 without prejudice to any other rights or remedies it may have hereunder or at law terminate this agreement upon seven days’ written notice to the Company; or
4.2.2 after consultation with the Company specify by notice to the Company such revised delivery date as it shall in its reasonable opinion think fit making time of the essence.
Section 5 – Access to RETAILSYSTEM and acceptance
5.1 The Company shall enable access to the RETAILSYSTEM via the Licensee’s Hardware and provide the initial training.
5.2 Upon completion of the access to RETAILSYSTEM and initial training the Licensee shall be deemed to have accepted the Licensed Program Materials.
5.3 The Licensee is entirely responsible for ensuring that its Hardware provides Internet access to the specification required by the Licensor from time to time.
Section 6 – Support
6.1 With effect from the Acceptance Date and for the duration of this agreement the Company shall provide in respect of the Licensed Programs:
6.1.1. advice by telephone or email on the Use of the Licensed Programs (category “A”);
6.1.2 information and advice by telephone or email on forthcoming New Releases of the Licensed Programs (category “B”);
6.1.3 No Support entitlement (category “C”).
6.2 The Licensee shall supply by email to the Company a detailed description of any fault requiring Technical Support within category A above and the circumstances in which it arose forthwith upon becoming aware of the same.
6.3 The Response Time for category A Support shall be between the hours of 10am and 5pm EST Monday through Friday (excluding bank and other public holidays). The Company shall use its reasonable efforts to respond within 24 hours of receipt of a request;
6.4 Support shall not include the diagnosis and rectification of any fault resulting from:
6.4.1. the improper use operation or neglect of the Licensed Program Materials;
6.4.2 the modification of the Licensed Programs or their merger (in whole or in part) with any other software;
6.4.3 the use of the Hardware to access RETAILSYSTEM;
6.4.4 the failure by the Licensee to implement recommendations in respect of or solutions to faults previously advised by the Company; or
6.4.5 the use of the Licensed Programs for a purpose for which they were not designed.
6.5 The Company will not provide support to the Licensee where the fault results from any of the circumstances described in clause 6.4 above.
Section 7 – Property and confidentiality in the licensed program materials
7.1 The Licensed Program Materials contain confidential information of the Company and all copyright trademarks and other intellectual property rights in the Licensed Program Materials are the exclusive property of the Company.
7.2 The Licensee shall not:
7.2.1 assign transfer sell lease rent charge or otherwise deal in or encumber the Licensed Program Materials or use the Licensed Program Materials on behalf of any third party or make available the same to any third party; or
7.2.2 remove or alter any copyright or other proprietary notice on any of the Licensed Program Materials
7.2.3 Abuse or misuse the Licensed Program Materials or seek to use them for any other purpose than the purpose for which they were sold.
7.3 The Licensee shall:
7.3.1 keep confidential the Licensed Program Materials and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the Use of the Licensed Programs (including where appropriate the Program Documentation);
7.3.2 reproduce on any copy (whether in machine readable or human readable form) of the Licensed Program Materials the Company’s copyright and trade mark notices;
7.3.3 notify the Company immediately if the Licensee becomes aware of any unauthorized use of the whole or any part of the Licensed Program Materials by any third party; and
7.3.4 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of the Company in the Licensed Program Materials.
7.4 The Licensee shall inform all relevant employees, agents and sub-contractors that the Licensed Program Materials constitute confidential information of the Company and that all intellectual property rights therein are the property of the Company and the Licensee shall take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 7.
Section 8 – Copying of the licensed program materials
8.1 The Licensee shall not be entitled to copy, share, or distribute in whole or in part the any Program or Retailsystem related Documentation.
Section 9 – Warranty
9.1 Subject to the exceptions set out in clause 9.4 below and the limitations upon its liability in clause 10 below the Company warrants that:
9.1.1 its title to and property in the Licensed Program Materials is free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this agreement;
9.1.2 the Licensed Programs will for a period of 365 days from the Acceptance Date conform to the Program Specifications;
9.1.3 it will perform the Services with reasonable care and skill; and
9.1.4 the Licensed Program Materials are Date Compliant.
9.2 The Licensee shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty.
9.3 Subject to clause 9.4 below the Company shall remedy any breach of the warranties set out in clauses 9.1.2 and 9.1.3 above by the provision of Technical Support (category A Basic Service) free of charge.
9.4 The Company shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clause 6.4 above or as a result of a failure of the Licensee’s internet connection.
9.5 Without prejudice to the foregoing the Company does not warrant that the Use of the Licensed Programs will meet the Licensee’s data processing requirements or that the operation of the Licensed Programs (including where in machine-readable form the Program Documentation) will be uninterrupted or error free.
9.6 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Licensed Program Materials and the provision of the Services are hereby excluded.
Section 10 – Limitation of liability
10.1 The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Licensee in respect of:
10.1.1 any breach of its contractual obligations arising under this agreement; and
10.1.2 any representation statement or tortious act or omission including negligence (but excluding any of the same made fraudulently) arising under or in connection with this agreementAND THE LICENSEE’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 10.
10.2 Any act or omission on the part of the Company or its employees, agents or sub-contractors falling within clause 10.1 above shall for the purposes of this clause 10 be known as an “Event of Default”.
10.3 The Company’s liability to the Licensee for:
10.3.1 death or injury resulting from its own or that of its employees’ agents’ or sub-contractors’ negligence; and
10.3.2 damage suffered by the Licensee as a result of any breach of the obligations implied by, as applicable, section 12 of the Sale of Goods Act 1979, section 2 of the Supply of Goods and Services Act 1982 or section 8 of the Supply of Goods (Implied Terms Act) 1973 shall not be limited.
10.4 Subject to the provisions of clause 10.3 above the Company’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the aggregate of the License Fee paid in the immediately preceding period of 12 months.
10.5 Subject to clause 10.3 above the Company shall not be liable to the Licensee in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Licensee as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Licensee incurring the same.
10.6 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
10.7 The Licensee hereby agrees to afford the Company not less than 60 days (following notification thereof by the Licensee) in which to remedy any Event of Default hereunder.
10.8 Except in the case of an Event of Default arising under clause 10.3 above the Company shall have no liability to the Licensee in respect of any Event of Default unless the Licensee shall have served notice of the same upon the Company within 90 days of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
10.9 Nothing in this clause shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.
10.10 This agreement is made upon the express condition that the Distributor, its agents and employees shall be free from all liabilities and claims for damages and/or suits for or by reason from any cause or causes whatsoever during the term of this agreement. Licensee hereby covenants and agrees to indemnify, defend, save and hold harmless the Distributor, its agents and employees from all liabilities, charges, expenses and costs on account of or by reason of any such liabilities, claims, suits or losses however occurring or damages growing out of the same.
Section 11 – Intellectual property rights indemnity
11.1 The Company will indemnify and hold harmless the Licensee against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Licensed Program Materials by the Licensee infringes the patent copyright registered design or trade mark rights of said third party (an “Intellectual Property Infringement”) provided that the Licensee:
11.1.1 gives notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same;
11.1.2 gives the Company the sole conduct of the defense to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Company; and
11.1.3 acts in accordance with the reasonable instructions of the Company and gives to the Company such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.
11.2 The Company shall reimburse the Licensee its reasonable costs incurred in complying with the provisions of clause 11.1 above.
11.3 The Company shall have no liability to the Licensee in respect of an Intellectual Property Infringement if the same results from any breach of the Licensee’s obligations under this agreement.
11.4 In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to:
11.4.1 procure the right for the Licensee to continue using the Licensed Program Materials; or
11.4.2 make such alterations modifications or adjustments to the Licensed Program Materials so that they become non-infringing without incurring a material diminution in performance or function; or
11.4.3 replace the Licensed Program Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
11.5 If the Company in its reasonable judgement is not able to exercise any of the options set out at clauses 11.4.1, 11.4.2 or 11.4.3] above within 90 days of the date it received notice of the Intellectual Property Infringement then the Licensee without prejudice to any other rights or remedies it may have hereunder or at law shall be entitled to terminate this agreement by 7 days’ notice upon the Company. Upon any such termination the provisions of clause 19.3 below shall apply.
11.6 The provisions of clause 10 above shall not apply to this clause 11.
Section 12 – Risk in the licensed program materials
12.1 Risk in the Licensed Program Materials will pass to the Licensee upon the Actual Start Date. If subsequently the Licensed Program Materials are (in whole or in part) destroyed damaged or lost the Company will upon request replace the same subject to the Licensee paying its then prevailing charges.
Section 13 – Confidentiality
13.1 The Licensor states and the Licensee accepts that all parts of the Licensed Program Materials are confidential to the Licensor. The Licensee undertakes not to download or attempt to copy any part of the Licensed Programs and to treat as confidential and keep secret all information embodied in the Licensed Program Materials, provided that this clause shall not extend to
13.1.1 information which is trivial or obvious
13.1.2 information which is already in its possession other than as a result of a breach of this clause; or
13.1.3 information which is in the public domain other than as a result of a breach of this clause.
13.2 The Licensee shall not without the prior written consent of the Licensor divulge any part of the information in the Licensed Program Materials to any person except the Licensees own employees both present and future and then only to those employees who reasonably need to use any of the Licensed Program Materials for the purposes of the Licensees Licensed Use of them
13.3 The Licensee undertakes to ensure that all its employees referred to in paragraph 13.2 above are made aware of the confidential nature of the Licensed Program Materials and that they owe a duty of confidence to the Licensor and that such duty of confidence will survive both the termination of this Agreement and the termination of their employment by the Licensee.
13.4 The Licensee shall promptly notify the Licensor if it becomes aware of any breach of confidence in the Licensed Program Materials or infringement of the Licensors intellectual property right (whether caused by the Licensees employees or otherwise) and shall afford the Licensor all reasonable assistance in connection with any proceedings undertaken by the Licensor in connection with any such breach of confidence or infringement.
13.5 The provisions of this clause 13 shall remain in full force not withstanding any termination of this Agreement.
Section 14 – Training
14.1 The Company shall provide to the Licensee commencing upon the Acceptance Date the training services to be included in the License Fee
14.2 The training shall comprise of product familiarization for a maximum of 5 users or such other training as the Company shall determine from time to time.
Section 15 – Duration of agreement
15.1 This agreement shall continue until terminated in accordance with the provisions of clause 17 below.
Section 16 – Licensee’s representatives
16.1 The Licensee shall communicate to the Company upon the date hereof the identity of the person(s) or the department within its undertaking at the Site who shall act as the sole contact point and channel of communication for the provision by the Company of the Services during the currency of this agreement. The Licensee shall forthwith inform the Company of any change in the identity of any such person(s) or department.
Section 17 – Termination
17.1 This agreement may be terminated:
17.1.1 by the Licensee upon giving not less than 30 days’ notice to the Company;
17.1.2 forthwith by the Company if the Licensee fails to pay the License Fee on the due date
17.1.3 forthwith by either party if the other commits any material breach of any term of this agreement (other than one falling within 17.1.2 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;
17.1.4 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
17.2 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
17.3 Within 14 days of the termination of this agreement (howsoever and by whomsoever occasioned) the Licensee shall at the Licensor’s sole option either return all copies of the Licensed Program Materials in its possession or control or shall destroy all copies of the Licensed Program Materials in its possession or control and a duly authorized officer of the Licensee shall certify in writing to the Company that the Licensee has complied with its obligation as aforesaid.
Section 18 – Force majeure
18.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority computer virus hijacking hacking or other similar event or occurrence (an “Event of Force Majeure”).
18.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
18.3 If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of an Event of Force Majeure.
Section 19 – Waiver
19.1 The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
Section 20 – Notices
20.1 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post to the address or to the e-mail of the other party set out in this agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by telephone or e-mail) upon the expiration of 12 hours after confirmation of send.
Notices to the Company:
Email address: email@example.com
Notices to the Licensee address in DocuSign Acknowledgement
Section 21 – Invalidity and severability
21.1 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
Section 22 – Entire agreement
22.1 The Company shall not be liable to the Licensee for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by a duly authorized representative of the Company in writing or expressly incorporated or referred to in this agreement.
22.2 The Licensee accepts that the Licensed Program Materials were not designed and produced to its individual requirements and that it was responsible for their selection.
22.3 Nothing in this agreement is intended to exclude a party’s liability for fraud or fraudulent concealment.
Section 23 – Successors
23.1 This agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.
Section 24 – Assignment and sub-licensing
24.1 The Licensee shall not be entitled to assign or otherwise transfer this agreement nor any of its rights or obligations hereunder nor sub-license the use (in whole or in part) of the Licensed Program Materials without the prior written consent of the Company.
Section 25 – Headings
25.1 Headings to clauses in this agreement are for the purpose of information and identification only and shall not be construed as forming part of this agreement.
Section 26 – Law
26.1 ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF NORTH CAROLINA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NORTH CAROLINA.
Section 27 – Updates to Agreement
27. Company may make regular and frequent updates to the Terms and Conditions and will post these changes in the Terms and Conditions webpage provided at time of Licensee sign-up. It is the Licensees sole responsibility to check for any changes to Terms and Conditions that may or may not impact their obligations and or responsibilities under the posted Terms and Conditions.
Section 28 – Agreement to Terms and Conditions
28. Licensee fully agrees that the acknowledgement and agreement to these terms and conditions was fully facilitated and executed by a clickwrap “Check here to indicate that you have read and agree to” during the DocuSign sign-up process.