VSN International Limited (and all subsidiaries – currently Biosci Co. Ltd (Thailand) and Beijing Statistics Software Co. Ltd)
When you complete a web Order Form or submit a signed copy of our offline Order Form to VSNi or a Reseller, agree a renewal or submit payment for an invoice, you are offering to enter into a contract with VSN International Limited (“VSNi”) on the terms set out below.
Where you are named as the Licensee in either Order Form, the offer to enter into a contract with VSNi is made by you personally.
Where you submit the Order Form on behalf of a company or organisation and that company or organisation is named as the Licensee in the Order Form, that offer is made on behalf of that company or organisation and, by submitting that form to VSNi or a Reseller, you are confirming the company or organisation agrees to the terms of this Agreement and that you have authority to agree to the terms of this Agreement and to enter into a contract with VSNi on behalf of that company or organisation.
Please read the terms of this Agreement carefully. If you do not agree to them, you should not submit the Order Form or ask for a licence or Activation Code to use the Software.
After you have submitted the Order Form, VSNi or a Reseller will acknowledge its receipt by e-mail and will contact you to confirm the details on that form and the licence and if any further fees are payable. VSNi and its Resellers reserve the right to reject any Order Form and not issue a Licence Key, as they see fit, without giving any reason.
A contract between the Licensee and VSNi will come into existence when VSNi sends you or the Licensee a Licence Key or Activation Code allowing the Licensee to access and use the Software.
RIGHT TO CANCEL:If you are a consumer, i.e. if you are submitting the Order Form for purposes outside your business, you would normally have a right to cancel under the https://www.legislation.gov.uk/uksi/2000/2334/contents/made within 7 clear business days after the contract is formed. However, you agree that VSNi may provide you with a Licence Key within that period and that, if VSNi does so, you will not have that right to cancel. Should you exercise any right to cancel you must immediately uninstall and remove the Software and confirm to VSNi the fact that this action has taken place.
VSN International Limited is a company registered in England, under company number 4027977. Its registered office is at 2 Amberside House, Wood Lane, Hemel Hempstead, HP2 4TP. Its VAT number is GB750 0348 63. If you wish to contact VSNi about the Software or the terms of any licence of the Software, please e-mail us at firstname.lastname@example.org, or visit our web site at www.vsni.co.uk for other contact details.
1.1 This Agreement means these terms and the Order Form / web form, as amended from time to time in accordance with clause 11;
1.2 A Reseller means a person appointed by VSNi to sell licences of the Software and certified by VSNi as able to provide support and assistance to Licensees to a standard specified by VSNi from time to time; a Reseller means a person appointed by VSNi to negotiate with, and provide certain services to end users of the Software, and the Reseller means the particular Reseller through whom the Licensee has acquired its licence to use the Software;
1.3 The Current Version means the last version of the Software released by VSNi for use by Licensees generally, and does not mean any beta test version of the Software or any version developed or modified to meet the requirements of one or more particular Licensees;
1.4 The Documentation means the help facility included in the Software or contained within the Knowledgebase;
1.5 An Error means a material failure of the Software to provide the functions described in the Documentation;
1.6 Intellectual Property Rights means any patent, copyright, trade mark, trade name, service mark, registered design, design right (registered and unregistered), know-how, right of confidence, trade secret, right to extract or exploit data, database rights, any similar rights protected in any jurisdiction, whether now existing or coming into existence at some future date, any application for any of the above, and any accrued rights of action in respect of any of the above;
1.7 The Licensee means the Licensee named in the Order Form;
1.8 The Licences for use in the Cloud or Cloud Services means the Software as a Service and Cloud-based data storage offerings provided by VSNi that are listed on the Order Form and selected by the Customer. Cloud and cloud services are defined as any infrastructure resources, services or application sourced from cloud computing and its associated providers. We permit the use of our Software in cloud computing in accordance with our EULA and the end user’s permitted licence allowance and associated cloud applicable pricing structure. In the interest of clarity, the number of concurrent sessions must not exceed the agreed number of licences in issuance;
1.9 The Licences for VM use (non-cloud) means Virtualization is a technology that allows you to create multiple simulated environments from a single physical system and to split said system into virtual machines. We permit our Software to be used in this manner in accordance with our EULA and the end user’s permitted licence allowance. In the interest of clarity, the number of concurrent sessions must not exceed the agreed number of licences in issuance;
1.10 The Order Form (any online or hard copy form completed by the Licensee or its representative) refers to any type of order confirmation including email, web form and payment of an invoice or renewal submitted to VSNi or a Reseller for the purposes of obtaining a licence to use the Software and a license key or Activation Code to operate the Software;
1.11 A Parallel Session means multiple numbers of concurrent executions of the Software executed from a single installation of the Software;
1.12 The Software means the Software (in object code) provided by VSNi to the Licensee, as modified and updated from time to time by the provisions of the Support Services (if any) provided to the Licensee;
1.13 The Start Date means the date on which VSNi or the Reseller provides the Licence Key or Activation Code to the Licensee;
1.14 The Support Services means the services described in clause 4.2;
1.15 You means the person submitting the Order Form;
1.16 Working Hours means 9 am to 5 pm (local time covered by our UK and Asia operations) Mondays to Fridays, except bank, public or statutory holidays;
1.17 A Workstation means a computer designed for technical or scientific applications. A Workstation can be a stand-alone machine, connected to an internal network, or an internal network server. The Workstation must be owned by the Licensee or leased as an identifiable specific machine under the direct control of the Licensee;
1.18 Writing includes text stored and transmitted electronically.
2. Licence – Restrictions
2.1 The Licensee may use the Software on the terms set out in this Agreement. The licence is non-exclusive and non-transferable.
2.2 Should Cloud Services be offered under this Agreement, by Amazon AWS, Microsoft Azure or any other Cloud Service Company, you will be required to adhere to the Cloud Company’s Acceptable Use Policy.
2.3 If a maximum number of workstations, VMs, or named users, or a maximum number of concurrent users, or one or more sites, or one or more machines, or a version of the Software, or the operating system are specified in the Order Form, the Software may only be used on workstations up to that number, or by those named users, or up to that number of concurrent users at any one time, or at that site or those sites or on that machine or those machine, and where a version of the Software or an operating system is specified in the Order Form, this Agreement permits the use of that version of the Software and with that version of that operating system only. If the Licensee wants to increase that number of workstations or named users or the maximum number of concurrent users, or to change or add to the sites or the machines, or to use a different version of the Software, or to use the Software with a different operating system, the Licensee must obtain an additional license or extension of this licence from VSNi or the Reseller. Any additional license or extension may be subject to the Licensee paying additional licence fees and, where applicable, additional support fees.
2.4 Parallel sessions shall be governed under a fair use policy. This can be via the licence management tools or by negotiation. Ordinarily fair use covers a maximum of four parallel sessions from the same installation.
2.5 Unless the licence to use the Software is an annual licence, the licence is restricted to use of the version of the Software first supplied pursuant to this Agreement by VSNi or the Reseller, and the Licensee is not entitled to new versions of the Software without a support and maintenance contract in place.
2.6 If the Order Form states that the licence is granted for a fixed period, the licence will, unless terminated earlier, automatically expire at the end of that period. If the Order Form states that the licence is an annual licence, it will automatically renew on each anniversary of the Start Date until it is terminated by VSNi or the Licensee giving the other at least 30 days’ notice of termination to expire on any anniversary of the Start Date.
2.7 Where the Licensee has acquired a licence that is restricted to use of the Software at one or more sites, the Licensee is entitled to Support Services for each named user or for the maximum number of concurrent users
2.8 The licence will begin on the Start Date and unless it is terminated under clause 2.5, 3.3 or 7.2.6, it will continue until the termination of this Agreement under clause 8.1.
2.9 Only the Licensee and its employees may use the Software and then only for the Licensee’s internal business or for academic teaching or academic research purposes. The Licensee must not transfer the Software or share its use with anyone else. Nor may the Licensee use it for anyone else’s benefit (including, without limitation, using it to provide bureau, outsourcing or application services or facilities management services). .
2.10 The Licensee may not copy the Software except to make a reasonable number of back-up copies, and a back-up copy may be used only by substituting it for the original copy of the Software supplied to the Licensee, for testing the Software and its integration with other applications, and for testing and implementing the Licensee’s disaster recovery or business contingency procedures. The Licensee must keep each back-up copy in a secure place, in the Licensee’s possession, and under its control, at all times.
2.11 The Licensee must ensure that every copy of the Software bears the copyright and other proprietary notices on the original copy of the Software. The Licensee must not remove, obliterate or modify any of those notices.
2.12 The Licensee may not modify the Software, or combine it with, or incorporate it in, any other software. If anyone except VSNi, or its agent, modifies the Software, VSNi will be released from any obligation to provide any Support Services; and VSNi will be entitled to raise, and the Licensee will pay, VSNi’s additional charges for any services VSNi may provide in respect of the modified Software.
2.13 Except as permitted under the European Software Directive or any legislation implementing that Directive, the Licensee must not reverse engineer any of the Software to determine any design structure, concepts or methodology behind the Software, or to incorporate it in any other software or any product, or for any other purpose.
3.1 The Licensee will have 30 days following the Start Date to test the Software for Errors. If the Licensee discovers an Error, it must notify VSNi of this before the end of that 30 day period, and give VSNi a reasonable opportunity to correct the Error, and to re-supply the corrected Software. The Licensee will then have another 30 day period to repeat the Licensee’s tests on the Software. If after a period of 90 days after the Start Date, VSNi has not been able to correct the Errors notified to it, the Licensee may, by giving VSNi notice, reject the Software. If the Licensee rejects the Software, the licence fees paid by the Licensee under this Agreement will be refunded.
3.2 If the Licensee has not notified VSNi of any Error within the initial or (if applicable) any subsequent 30 day period, the Licensee will be deemed to have accepted the Software. If the Licensee begins live or production use of the Software, that is if the Licensee uses it for any purpose except for testing it, the Licensee will be deemed to have accepted the Software.
3.3 VSNi’s refund of any licence fees under clause 3.1 will be in full and final settlement of any liability VSNi may have to the Licensee (under this Agreement or under any other agreement in connection with the licensing, supply, development, implementation, configuration, support or maintenance of the Software) and will automatically terminate the Licensee’s right to use the Software and this Agreement.
4. Support Services
4.1 If the Order Form states that Support Services will be provided then, for so long as the Licensee pays all support fees due to VSNi, VSNi or a Reseller will provide the Support Services until the expiry of not less than 30 days’ notice from VSNi or the Licensee to the other, to the effect that Support Services will no longer be supplied or be required, or (if earlier) the termination of this Agreement. Any notice given under this clause must expire on an anniversary of the Start Date.
4.2 The Support Services are:
4.2.1 the provision during Working Hours of a help desk for the purpose of advising the Licensee in relation to problems encountered in using the Software;
4.2.2 the provision of any Error corrections to the Software issued by VSNi from time to time via its website, and;
4.2.3 the provision of any updates to the Software issued by VSNi to its Licensees generally
4.3 If the Reseller is a Certified Reseller, the Reseller may, by special arrangement with the Licensee, provide a help desk outside Working Hours.
4.4 VSNi is not obliged to provide any statistical advice to the Licensee, but will try and provide that sort of advice if and when it can. If it does so, the clauses in this Agreement limiting or excluding its liability will also apply to VSNi’s liability in connection with that advice.
4.5 VSNi may decline to provide assistance, under clause 4.2.1 or may charge the Licensee for providing that assistance, if the Licensee makes more than 3 calls to the helpdesk in any 3 month period, not taking into account calls to report any Error.
4.6 The Support Services are not provided for any version of the Software except the Current Version. If the Licensee requests support or assistance for any earlier version, and VSNi agrees to supply that support or assistance, the Licensee will pay for that support and assistance at VSNi’s rates in force at that time.
4.7 VSNi may decline to provide the Support Services in clause 4.2.1 to anyone except the Individual’s, technical contacts named on the Order Form and anyone that the End User notifies VSNi is replacing one of those contacts.
5.1 Subject to clause 5.2, the Licensee will pay VSNi or the Reseller licence fees for the Software calculated by reference to the details on the Order Form and VSNi’s or the Reseller’s rates and charges in force at the time the order for the Software and services,
5.2 VSNi and Resellers may revise any annual licence fees and any support fees with effect from any anniversary of the Start Date by giving the Licensee not less than 30 days’ notice. As from the expiry of that notice, the Licensee will pay VSNi or the Reseller those revised fees.
5.3 The Licensee will reimburse VSNi for all travel, subsistence and other expenses incurred by its employees or contractors in providing the Software or any services to the Licensee.
5.4 All fees and charges payable under this Agreement are exclusive of any value added, sales, customs duties or other taxes or duties on the supply to the Licensee and the export and import of any goods or services. The Licensee will pay these in addition to the licence fees, support fees and other charges payable under this Agreement.
5.5 The Licensee will pay VSNi and the Reseller all fees and charges payable under this Agreement within 30 days after the date of VSNi’s or the Reseller’s invoice. VSNi may, without prejudice to any other right or remedy, terminate this Agreement, or suspend work under it if, within 14 days after receiving written notice of the Licensee’s failure to pay in accordance with the terms of this clause, the Licensee still fails to make those payments in full.
5.6 The Licensee will pay VSNi or the Reseller, on demand, interest calculated on a daily basis on all sums not paid within 30 days after the date of VSNi’s or the Reseller’s invoice and the costs of recovery in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. The Licensee will also pay VSNi’s and any Reseller’s reasonable expenses (on an indemnity basis) in connection with the Licensee’s failure to pay any fees or charges when due, including (but not limited to) legal expenses and the costs of collection.
6.1 VSNi warrants to the Licensee that VSNi is the owner of the Intellectual Property Rights in the Software or that it has the right to license the Licensee to use the Software.
6.2 VSNi warrants to the Licensee that the Software, as delivered by VSNi to the Licensee, will, for 90 days after the Start Date, function substantially in accordance with the Documentation when properly used on the equipment and operating system specified in the Order Form.
6.3 Provided the Licensee provides a copy of its data and anything else needed to reconstruct the problem, VSNi will investigate any purported breach of warranty reported by the Licensee in writing within the period specified in clause 6.2 and, where appropriate, VSNi or the Reseller will endeavour to correct any Error within a reasonable time, or to provide avoidance or remedial information, or VSNi or the Reseller will refund the licence fee paid by the Licensee for the Software.
6.4 Any refund of any licence fees under clause 6.3 will be in full and final settlement of any liability VSNi or the Reseller may have to the Licensee (under this Agreement or in any other way in connection with the licensing, supply, development, implementation, configuration, support or maintenance of the Software) and will automatically terminate the licence.
6.5 Neither VSNi nor any Reseller will be liable under any warranty or any other provision of this Agreement to the extent that any failure of the Software to comply with any warranty, or to the extent that any error, defect, bug or deficiency in the Software, or VSNi’s or any Reseller’s failure to correct or delay in correcting it, results from the Licensee not having complied with its obligations under this Agreement, or from any other act or omission on the Licensee’s part, or on the part of any third party. In particular, VSNi and the Reseller will not be liable if any modification has been made to any of the Software by anyone except VSNi.
6.6 Neither VSNi nor the Reseller will be liable under any warranty or under any other provision of this Agreement to the extent that any loss or damage is caused by the Licensee’s failure to implement, or the Licensee’s delay in implementing, any upgrade, update, new release, revision, version or modification of the Software which would have remedied or mitigated the effects of any error, defect, bug or deficiency.
6.7 When notifying VSNi or the Reseller of an Error the Licensee must provide a documented example of it and all other information and materials needed to reproduce it including, without limitation, an example of where and when the Error occurred and a listing of the related input and output and a written explanation of the Error.
6.8 Because of the nature of software, VSNi does not warrant that the Software will be error free or that it will run without interruption, or that every error, defect, bug or deficiency can be or will be corrected.
6.9 VSNi warrants to the Licensee that VSNi will use reasonable skill and care in the performance of this Agreement.
6.10 The Licensee acknowledges that proper use of the Software is dependent on the Licensee and its staff exercising proper skill and care in inputting data into the Software and interpreting the output provided by the Software. Neither VSNi nor the Reseller will be liable for the consequences of decisions taken by the Licensee on the basis of that output.
6.11 The express undertakings and warranties given by VSNi in this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations on the part of VSNi or the Reseller implied by statute, common law, custom, trade usage, course of dealing or in any other way. All of these are, to the extent permitted by law, excluded.
6.12 The Licensee warrants that it has not been induced to enter into this Agreement by any representation or by any warranty (whether oral, or in writing) except those specifically set out in this Agreement as warranties. The Licensee waives all claims for breach of any warranty and all claims for any misrepresentation, (negligent or of any other kind, unless made by VSNi or the Reseller fraudulently) which is not specifically set out in this Agreement as a warranty.
7. Intellectual Property Rights
7.1 The Licensee acknowledges that all Intellectual Property Rights in the Software, as between the Licensee and VSNi, are and will remain VSNi’s property or that of VSNi’s licensors and that VSNi may license others to use them.
7.2 Subject to clause 13 below, VSNi will indemnify the Licensee in respect of any damages and costs awarded against the Licensee by a court of competent jurisdiction on the grounds that the Software as VSNi supplied it to the Licensee infringes the copyright of any third party, provided that:
7.2.1 the Licensee immediately notifies VSNi of each and every claim that the Software infringes any Intellectual Property Rights;
7.2.2 the Licensee makes no admission or in any other way prejudices VSNi’s defence or settlement of any such claim;
7.2.3 the Licensee gives VSNi complete control of the defence and settlement of each claim and all reasonable assistance with its defence and settlement;
7.2.4 the claim does not arise out of the Licensee’s act or omission, or that of any third party, or any other circumstances outside VSNi’s control;
7.2.5 the Licensee takes all reasonable steps to minimise the damages and costs which the court might award against it or VSNi in relation to the Licensee’s use of the Software; and
7.2.6 VSNi may, at its option: modify the Software; or procure for the Licensee the right to continue to use the Software; or replace the Software; or terminate this Agreement and the licence and refund a proportion of the licence fees paid by the Licensee. That proportion will be calculated on the basis that the licence fees are pro-rated evenly over 3 years (or if the licence fees are paid annually, 1 year) beginning on the Start Date (or in the case of annual licence fees, an anniversary of that date) and that the refund will reflect the proportion of that period left to run as at termination under this clause.
7.3 Clause 7.2 sets out all of VSNi’s liabilities and obligations and all of the Licensee’s remedies in relation to the Software infringing any Intellectual Property Rights and in relation to any breach of the warranty in clause 6.1.
8.1 Either party may terminate this Agreement immediately on giving notice in writing to the other if:
8.1.1 the other commits any material or persistent breach of this Agreement and (in the case of a breach which is capable of being remedied) it has failed to remedy it, within 30 days after receiving notice requiring it to remedy the breach. (A persistent breach is one that occurs three or more times in any 12 month period.); or
8.1.2 the other has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets, or it passes a resolution for winding-up (except for fthe purpose of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if it becomes subject to an administration order, or if it enters into any voluntary arrangement with its creditors, or if any similar process to any of the above is begun in any jurisdiction, or if it ceases or threatens to cease to carry on business.
8.2 VSNi may suspend its performance of this Agreement if any of the circumstances mentioned in clause 8.1 above arises in relation to the Licensee. That suspension will not prejudice VSNi’s right later to terminate this Agreement, either for the same or for a different reason.
8.3 On the termination of this Agreement (however it happens), the Licensee’s right to use the Software will immediately and automatically terminate, the Licensee will immediately return to VSNi or the Reseller all copies of the Software in the Licensee’s possession or control, the Licensee will immediately uninstall and remove all copies of the Software from any computer system in its possession or control, and the Licensee will certify to VSNi or the Reseller in writing that this has been done.
8.4 Any termination of this Agreement (however it happens) will not affect any accrued rights or liabilities of either party, nor will it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into or to continue in force on or after termination.
8.5 On the termination of this Agreement the Licensee will immediately pay VSNi or the Reseller for all work done before termination and for all expenses VSNi has incurred or has agreed to incur in connection with any work done or to be done for the Licensee.
8.6 Clauses 3.3, 5.5, 5.6, 6.4, 6.5, 6.6, 6.8, 6.10, 6.11, 6.12, 7.1, 7.3, 8.3, 8.4, 8.5, 8.6, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 will survive the termination of this Agreement and continue indefinitely.
9.1 VSNi will keep confidential, and not use for any purpose except providing the Software and services to the Licensee, any confidential information which the Licensee discloses to VSNi relating to the Licensee’s business or its clients and their affairs.
9.2 The Licensee will keep confidential, and not use for any purpose except exercising its rights under this Agreement, the Software, any information relating to the Software, and any information about VSNi’s business, its financial affairs, its methodologies, strategies, plans, technology or its clients. The Licensee will notify VSNi immediately if the Licensee becomes aware of any unauthorised use of any of that information or of the Software by anyone. The Licensee will allow VSNi at any time to check that the Licensee’s use of the Software is in accordance with this Agreement and, for that purpose, the Licensee irrevocably licenses VSNi, the Reseller, their respective employees and agents, to enter any of the Licensee’s premises.
9.3 The Licensee will not, without first obtaining VSNi’s written consent, disclose any of the Software or any information protected by clause 9.2 to anyone except:
9.3.1 the Licensee’s employees, and then only to those employees who need to know or to have access to them in order to use the Software in accordance with this Agreement; or
9.3.2 the Licensee’s auditors, HM Inspector of Taxes, HM Customs & Excise and any other person having a right, duty or obligation to know the Licensee’s business, but then only in pursuance of that right, duty or obligation.
9.4 The Licensee will ensure that the people mentioned in clause 9.3 are made aware, before the disclosure to them of any of the Software or any information protected by clause 9.2, that it is confidential and that they owe a duty of confidence to VSNi. The Licensee will indemnify VSNi against all loss and damage which VSNi may sustain or incur as a result of the Licensee or its employees, or anyone who has access to any of the Software or any information protected by clause 9.2 through the Licensee failing to comply with the provisions of this clause 9.
9.5 The Licensee will immediately notify VSNi if the Licensee becomes aware of any breach of confidence by anyone to whom the Licensee discloses the Software or any of the information protected by clause 9.2, and the Licensee will give VSNi all assistance reasonably required by VSNi in connection with any action or proceedings which VSNi may institute against that person for breach of confidence.
9.6 The Licensee will effect and maintain adequate security measures to safeguard the Software and information protected by clause 9.2 from access or use by any unauthorised person, will retain them and all copies of them under the Licensee’s possession and control, will keep a full and accurate record of the Licensee’s copying and disclosure of them, and will produce that record to VSNi from time to time on demand.
9.7 The provisions of clauses 9.1 and 9.2 do not apply to any information which is in or comes into the public domain unless as a result of a breach of clause 9.1 or 9.2.
10. The Licensee’s Information and Facilities
The Licensee will provide VSNi and the Reseller, free of charge, with all information, materials, documentation, resources and facilities reasonably requested by either of them to enable VSNi and the Reseller to perform this Agreement. The Licensee will ensure that its staff, contractors and other suppliers co-operate fully with VSNi and the Reseller and cause no delay. Where VSNi or the Reseller requests the Licensee to provide information or to take a decision, the Licensee will do so promptly as not to cause any delay.
11. Entire Agreement & Amendments
This Agreement supersedes all earlier agreements, arrangements and understandings between the parties in respect of its subject matter, and constitutes the complete agreement between them relating to that subject matter. No addition to, or modification of, any provision of this Agreement will be binding on either party unless recorded in writing and signed by a duly authorised representative of each of them.
All notices given by VSNi under this Agreement will be in writing and be sent to the contact address, e-mail address or fax number of the Licensee set out in the Order Form or any other address, e-mail address or fax number which the Licensee may designate by notice given to VSNi in accordance with this clause 12. Any notice given by the Licensee under this Agreement must be in writing and be sent to VSNi’s registered office, or contact e-mail address or fax number given in this Agreement, or any other address, e-mail address or fax number which VSNi may designate by notice given to the Licensee in accordance with this clause 12. Any notice may be delivered personally, or by first class pre-paid letter, or by fax, or by e-mail and will be deemed to have been served: if by hand, when delivered; if by first class post, 48 hours after posting; if by fax, when despatched, provided the sender holds written confirmation automatically produced by the sender’s fax machine of error free and complete transmission of that fax to the intended recipient’s fax number, and if by e-mail, on that e-mail being accessible by the intended recipient.
13. Limitations and Exclusions of Liability
13.1 Subject to clause 13.6, VSNi’s and the Reseller’s aggregate total liability for all and any claims in connection with the Software and the performance or non-performance of this Agreement, whether in contract, or tort (including negligence) or arising in any other way, will not exceed the licence fees paid by the Licensee at the time the claim is made.
13.2 Cloud Service Disclaimer. The cloud services are provided “As is.” except to the extent prohibited by law, or to the extent any statutory rights apply that cannot be excluded, limited or waived, VSNi
(a) makes no representations or warranties of any kind, whether express, implied, statutory or otherwise, regarding the service offerings or the third party content and
(b) disclaim all warranties, including any implied or express warranties
(i) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment,
(ii) arising out of any course of dealing or usage of trade,
(iii) that the service offerings or third-party content will be uninterrupted, error free or free of harmful components, and
(iv) that any content will be secure or not otherwise lost or altered.
13.3 Cloud Service limitation of liability. To the fullest extent permitted by applicable law, VSNi will not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, revenues, customers, opportunities, goodwill, use, or data), even if a party has been advised of the possibility of such damages. Further, VSNi will not be responsible for any compensation, reimbursement, or damages arising in connection with:
(a) your inability to use the services, including as a result of any
(i) termination or suspension of this agreement or your use of or access to the service offerings,
(ii) our discontinuation of any or all of the service offerings, or,
(iii) without limiting any obligations under the service level agreements, any unanticipated or unscheduled downtime of all or a portion of the services for any reason;
(b) the cost of procurement of substitute goods or services;
(c) any investments, expenditures, or commitments by you in connection with this agreement or your use of or access to the service offerings; or
(d) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of your content or other data. In any case, VSNi’s aggregate liability under this agreement will not exceed the amount you actually pay them under this agreement for the service that gave rise to the claim during the 12 months before the liability arose.
13.4 Despite anything else contained in this Agreement (except clause 13.8), neither VSNi nor the Reseller will be liable to the Licensee for any loss of profits, loss of savings, loss of use, loss of business, loss of opportunity, loss or spoiling of data, loss of contracts, in any case whether direct or indirect, or for any indirect or consequential loss, whether arising from negligence, or breach of contract, or in any other way, even if VSNi or the Reseller had been advised of, or knew of, the likelihood of that loss or type of loss arising.
13.5 Because of the uncertainty of future events and circumstances neither VSNi nor the Reseller guarantees that its forecasts, projections, advice, recommendations or the contents of any report, presentation or other document will be achievable, and the Licensee acknowledges that VSNi gives the same to address specific circumstances at the time. All information which VSNi or the Reseller supplies is supplied in good faith, but the accuracy and completeness of any information obtained from, or based on, information obtained from the Licensee or any third party is not warranted by VSNi or the Reseller. It is not within the scope of VSNi’s or the Reseller’s obligations to enquire as to, or to verify, the accuracy or completeness of that information.
13.6 The Licensee acknowledges that the above limitations of and exclusions on VSNi’s and the Reseller’s liability are reasonable in the light of VSNi’s insurance arrangements and that VSNi is willing to accept a higher limitation on its liability provided it is able to obtain full insurance cover for its liabilities and the Licensee pays the costs of obtaining and maintaining any increased cover.
13.7 Nothing in this Agreement limits or excludes VSNi’s or the Reseller’s liability for death or personal injury caused by its negligence or for fraud, or affects any of the Licensee’s statutory rights as a consumer.
13.8 The Software has been developed for use with the operating system specified in the Order Form. Neither VSNi nor the Reseller will be liable for any failure to operate with any other operating system or for any degradation in performance or reduction in functionality caused by the use of the Software with any other operating system.
14.1 Despite anything else contained in this Agreement, neither VSNi nor the Reseller will be liable for any delay in performing or failure to perform its obligations caused by circumstances beyond its control (including, without limitation, any act or omission on the Licensee’s part or on the part of any third party, and any bug, defect, error, fault or deficiency in any software or data not provided by VSNi or developed by or on behalf of the Licensee, or in any equipment), and VSNi and the Reseller will be granted a reasonable extension of time for the performance of its obligations.
14.2 VSNi will endeavour to comply with any timetable, project plan or dates which it has given to the Licensee for the performance of this Agreement but they are estimates only, and VSNi will not be liable for any delay or failure to supply or perform in accordance with that timetable or project plan, or those dates.
The Licensee may not assign, or transfer, or sub-contract this Agreement or any of its rights or obligations under it, whether in whole or in part, without first obtaining VSNi’s written consent.
If any part of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder of this Agreement will not be affected.
No forbearance or delay by either party in enforcing its rights will prejudice or restrict those rights. No waiver of any right will operate as a waiver of any later right or breach. No right, power or remedy conferred on, or reserved to, either party is exclusive of any other right, power or remedy available to it, and each of those rights, powers, and remedies is cumulative.
The headings in this Agreement are solely for convenience; they do not affect its interpretation, construction or terms.
This Agreement and its validity are governed by, and this Agreement is to be construed in accordance with, the laws of England. The Licensee agrees to submit to the jurisdiction of the English Courts or any other courts of VSNi’s choosing. Where the Licensee is outside the jurisdiction of the English Courts, the Licensee’s address for service in England is set out in the Order Form.
20. Partnership and Third Parties
20.1 Nothing in this Agreement creates, evidences or implies any partnership or joint venture between the parties, or the relationship between them of principal and agent. Any Reseller is acting as principal and not as VSNi’s agent.
20.2 The Reseller is entitled to the benefit of the disclaimers and limitations and exclusions on its liability contained in this Agreement. Subject to that, no third party is entitled to the benefit of this Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.