GEOSHO Software License and Maintenance Agreements for the
This Online Agreement (the “Agreement”) is entered into by and between between GEOSHO Cyf. registered in England and Wales under registration number 07207860 whose registered address is at 6 Bridge Street, Caernarfon, Gwynedd LL55 1AB (“Geosho”) and the entity agreeing to these terms (“Customer”).
This Agreement is effective as of the date you click the “I accept” button (and / or, if applicable, the date of signature of this Agreement) . If you are accepting on behalf of your employer or another organisation, you represent and guarantee that: (a) you have necessary legal authority to commit your employer, or the applicable organisation, to the terms and conditions; (b) you have read and understand this Agreement; and (c) you agree, on behalf of the party that you represent, to this Agreement.
If you do not have the necessary legal authority to commit your employer or the applicable organisation, please do not click the “I Accept” button below (and / or, if applicable, do not sign this Agreement). This Agreement governs Customer’s access to and use of the Services
THE PARTIES AGREE AS FOLLOWS:
1.1 In this Agreement unless the context otherwise requires:
“Agreement” means this Agreement and the Schedules attached hereto;
“Agreed Rate” means GEOSHO’s prevailing daily rate notified to the Customer
from time to time;
“API” means the application programming interface that supports requests for web services made of it by other computer programs.
“Commencement Date” means the date on which the Customer certifies the completion of the Installation of the Software;
“Confidential Information” means any information (whether of a commercial or technical nature) relating to the subject matter of this Agreement including
the Software, the Documentation, the terms of this Agreement and other information which is disclosed or made available by GEOSHO to the
“Customer” The individual, company or organisation who has entered into an agreement with GEOSHO for the provision of software and/or services.
“Customer’s Implementation” means a web-site or software application that uses the product to add, obtain and display content.
“Data storage” means any database, spreadsheet, chart, physical document, server, network, or other means of storing information, whether created or distributed by You or otherwise
“Delivery” means the delivery of the Software and Documentation to the Site or Customer;
“Delivery Date” means the date on which the Software and Documentation is
delivered which shall be within a reasonable period following execution of this
Agreement unless otherwise agreed between the Parties;
“Designated Equipment” means the machines on which the software will run.
“Documentation” means the information reasonably necessary of for the routine operation of the Software by the Customer to be made available from time to time during this Agreement by GEOSHO at its discretion in either printed or machine readable form to the Customer;
“End User(s)” means individuals or organisations who use the Customer’s implementation of the
“Fees” means the fees to be paid by the Customer under this Agreement in
respect of the grant of the license for the Software and the provision of the
Maintenance Services, Support Services and Hosting Services (as applicable)
and the terms “license Fee”, “Maintenance Fee”, “Support Fee” and “Monthly fee”
“High Risk Activities” means use where the failure of the product could lead to death, personal injury or environmental damage.
“Hosting Fee” shall be construed accordingly;
“Force Majeure” means any cause affecting the performance by a party of
its obligations arising from acts, events or omissions beyond its reasonable
“Hosting Services” means the supply of software and services by GEOSHO to the Customer for the hosted GEOSHO services in accordance with the Hosting Services Agreement as set out at Schedule 4;
“Installation” means the installation of the Software by GEOSHO on the Designated Equipment at the Site;
“Installation And Configuration Tests” means the tests performed by or on behalf of GEOSHO to determine whether the Software can perform the functions specified by the customer;
“Installation And Configuration Test Date” means the date on which the Installation And Configuration Tests commence;
“Intellectual Property” means all patents, trade marks, service marks, trade names, domain names, business names, copyrights, design rights, database rights, rights to or in computer software, know-how, trade secrets, rights to or in confidential information and all other intellectual property rights and rights or forms of protection of a similar nature or effect which may subsist anywhere in the world whether or not registered or capable of registration, together with all applications for registration of, and any license to use, any of the foregoing and “Intellectual Property” shall be construed accordingly;
“Maintenance Release” means any patch or improved modified or corrected version of any or all of the Software from time to time issued by GEOSHO and made available as part of the Maintenance Services Agreement in consideration of the Maintenance Fees. Typically a Maintenance Release may be characterised by minor changes in version number, for example V1.0 to V1.1 or V1.01 to V1.02 etc.;
“Maintenance Services” means the maintenance services relating to the Software to be supplied by GEOSHO to the Customer in accordance with the Maintenance Services Agreement as set out at Schedule 3;
“New Release” means any improved modified or corrected version of any of additional functionality and that is made generally available to end user customers and in respect of which additional fees may be payable. Typically a new release may be characterised by a major change in version number, for example from V1.0 to V2.0 etc. For the purposes of this Agreement, New Release does not include Maintenance Release;
“Order Date” means the date on which GEOSHO receives a purchase order and signed Software license and Maintenance Agreement;
“GEOSHO Site” means GEOSHO’s web-site and all related properties, the url of which is located at www.GEOSHO.com.
“Customer Site” means the customer’s site and all related properties the url of which is located at www. “Customer Site Name” .com
“GEOSHO Data” means any data, images, text, content or other information or materials made available to You by GEOSHO through the API.
“Services” means the Maintenance Services, Support Services and/or Hosting Services as applicable;
“Site” means (where appropriate) the address for Delivery of the Software and Documentation and Installation of the Software.
“Software” means the software programs in object code form identified in Schedule 1 including any New Release, Maintenance Release, images, photographs, films, music, sounds, text, ‘applets’ incorporated into the Software and any work derived from the Software;
“Territory” means the territory for which the Customer is licensed to Use the Software and Documentation in the EU;
“Third Party Service provider(s)” means any service provided to GEOSHO which includes but is not limited to – Digital mapping, Mobile Data Services, Content Feeds, Locational Services.
“Third Party Components” Any third party component embedded, included or provided by GEOSHO for use with the Products may only be used in conjunction with the Product.
“Use” means the copying or transmission of the Software or (where in machine readable form) the Documentation into the Designated Equipment for the processing of the instructions contained in the Software or (as the case may be) the Documentation.
1.2 Headings are used in this Agreement for convenience only and shall not affect its construction or interpretation.
2. GRANT OF LICENSE
2.1 In consideration of the payment by the Customer of the Setup Fee and subject to the terms and conditions of this Agreement, GEOSHO hereby grants to the Customer a non-exclusive, non-transferable, limited license to Use the
2.3 The Software and Documentation are licensed hereunder solely for the internal business requirements of the Customer. Use for any other purpose or use by or for the benefit of any third party is prohibited except as may otherwise be expressly provided in this Agreement or expressly permitted by GEOSHO in writing. Access to and use of the Software and Documentation shall be limited to the Customer’s employees and it’s End Users.
2.4 The license does not include licenses for third party components, the operating systems or third party runtime or development licenses or for the provision of third party content which may be accessible through the use of the Software. The Customer shall be responsible for obtaining the relevant licenses, keys, and permissions for any third party components and content and shall establish on request that they are in place. To the extent that third party components covered by open source licenses requiring the provision of corresponding source code for those components, GEOSHO hereby offers the provision of such source code consistent with those licenses.
2.5 The Software and Documentation are licensed in English Language version only unless referred to in Relevant Schedules.
2.6 The Software is licensed on the understanding that the Customer shall ensure that End Users of the Customer’s implementation will not use GEOSHO products to record, upload, post, share or otherwise transmit any content that is Unlawful, Obscene, Harmful, Threatening, Defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, or is otherwise objectionable
2.7 That the customer shall ensure that the Software is not used in conjunction with or to facilitate High Risk Activities.
3.1 In consideration of the payment of the Maintenance Fee, GEOSHO shall supply the Maintenance Services in accordance with the Maintenance Services Agreement set out at Schedule 3.
3.2 Where the Parties have agreed the provision of Support Services and/or Hosting Services then in consideration of the payment of the Fees in relation to such Services, GEOSHO shall supply the Support Services and/or Hosting Services (as applicable) to the Customer on the terms of the Support Services Agreement and Hosting Services Agreement set out at Schedules 4 and 5 respectively.
4.1 In consideration of the grant of the license of the Software and Documentation, Delivery and Installation, the Customer agrees to pay to GEOSHO the Setup Fees.
4.2 In consideration of the supply of the Services the Customer shall pay the Annual as applicable.
4.3 All Fees are stated in Schedule 2 and save as expressly agreed otherwise:
(a) the setup Fee shall be due and payable in full at the Order Date; and
the Fees for all or any other work and Services shall be due and payable within thirty (30) days of the date of the invoice.
Where applicable Monthly fees are payable by Direct Debit and are deducted monthly on the 28th day of every month.
4.4 All Fees are exclusive of Value Added Tax (“VAT”) or any similar taxes. All such taxes are payable by the Customer on receipt of a valid VAT invoice and shall be applied in accordance with UK legislation in force at the tax point.
4.5 GEOSHO reserves the right to charge the Customer interest in respect of the late payment of any sum due under this agreement (as well after as before judgement) at the rate of four per cent (4%) per annum above the base rate (or other rate which may be substituted from time to time for base rate) of Barclays Bank plc (or
in the absence thereof of another major London clearing bank) calculated on a daily basis from the date payment was due until the date payment is made
4.6 The Customer shall not be entitled to withhold more than a proportionate amount of the sum due or set-off any disproportionate sum owed by them to Geosho by reason of any alleged minor defect.
4.7 In the event of non-payment GEOSHO shall have the right to immediately and without notice suspend or terminate the license hereby granted to the Customer. GEOSHO may repossess any copies of the Software or Documentation for which payment has not been received by GEOSHO and any documentation, data, records or information relating thereto.
5. DELIVERY, INSTALLATION & CONFIGURATION
5.1 GEOSHO shall use all reasonable endeavours to deliver the Software on the Delivery Date. GEOSHO shall use all reasonable endeavours to deliver the Documentation as soon as is reasonably practicable following the acceptance by the Customer of the Software.
5.2 Risk in the Software and Documentation will pass to the Customer upon Delivery. If subsequently the Software or Documentation are (in whole or in part) destroyed damaged or lost GEOSHO will upon request replace the same at the Customer’s cost on a time and materials basis at the Agreed Rate. The Customer will acknowledge all deliveries promptly in writing.
5.3 As soon as is reasonably practicable following Delivery, GEOSHO shall Install or configure the Software on the Designated Equipment.
5.4 The Customer shall ensure that prior to Delivery and Installation it has all computer equipment and operating systems software necessary for such Installation and that the Designated Equipment is operating correctly.
5.5 Save as expressly agreed by GEOSHO, time shall not be of the essence for Delivery and Installation.
6. Installation And Configuration TestS
6.1 As soon as is reasonably practicable following Installation, GEOSHO or a third party designated by GEOSHO shall perform the Installation And Configuration Tests in relation to the Software in accordance with the procedures specified by GEOSHO and current at the Installation And Configuration Test Date.
6.2 If the results of the Installation And Configuration Tests show that the Software meets the Customer Requirements in all material respects then the Customer shall be deemed to have accepted the Software on such date. Minor defects not materially affecting the functionality of the Software shall not preclude acceptance of the Software by the Customer.
6.3 If the results of the Installation And Configuration Tests show that the Software fails to meet the Customer Requirements in all material respects then:
(a) the Installation And Configuration Tests shall be repeated at a time to be agreed;
(b) if the failure was due to the act or omission of GEOSHO then GEOSHO shall be responsible for its expenses relating to the repeat Installation And Configuration Tests otherwise the Customer shall be responsible for GEOSHO costs and expenses relating to the repeat Installation And Configuration Tests on a time and materials basis at the Agreed Rate;
6.4 If the Installation And Configuration Tests are repeated in accordance with Clause 6.3(a) above and the results of the repeat Installation And Configuration Tests show that the Software fails to meet the Customer Requirements in all material respects then either party shall be entitled to terminate this Agreement without further liability..
6.4 Any period quoted by GEOSHO for completion of a satisfactory Installation And Configuration Test shall commence from GEOSHO receipt of all information and documentation which GEOSHO requires to perform the Installation And Configuration Tests. The time for the completion of such Installation And Configuration Tests shall be extended by a reasonable period if delay in such completion is caused by reason of Force Majeure.
7. THIRD PARTY COMPONENTS AND CONTENT PROVIDERS
7.1 As specified by third party content providers , the Customer and GEOSHO agree that:
(a) an API service in relation to the Software does not constitute any warranty, representation, guarantee, term, condition,undertaking or promise to Customers or any other third party in respect of Software will be error-free or free from any inaccuracies or defects or will operate in accordance with Customers’ or any other third parties’ requirements.
7.2 As specified by third party component providers, the Customer and GEOSHO agree that:
(a) any services provided by third party components in relation to the Software does not constitute any warranty, representation, guarantee, term, condition,undertaking or promise to Customers or any other third party in respect of Software will be error-free or free from any inaccuracies or defects or will operate in accordance with Customers’ or any other third parties’ requirements.
7.3 As specified by third party providers, the Customer and GEOSHO agree that:
(a) GEOSHO has no control over and does not host third party content and third party services. These resources, content and services are provided via the Product to the Customer and its End Users on an “as is” basis.
8.1 The Customer will:
(i) keep in confidence any Confidential Information disclosed to it by GEOSHO and will not disclose that information to any person (other than in confidence to their employees or professional advisers on a need to know basis) without the written consent of GEOSHO; (ii) use the Confidential Information disclosed to it by GEOSHO only for the purpose for which it was disclosed; (iii) ensure that all people to whom the Confidential Information is disclosed are aware of and bound by the terms of this Clause; and (iv) make copies of the Confidential Information only to the extent strictly permitted by this Agreement and necessary to the purpose for which it was disclosed.
8.2 Paragraph 8.1 shall not apply to information which has been published other than through a breach of paragraph 8.1, information which the Customer can show was lawfully in its possession before its disclosure, information the Customer obtained from a third party who is free at law to disclose it, or information which the Customer is required to disclose pursuant to an order made by a court or regulatory body of competent jurisdiction.
8.3 The Customer further agrees to keep the existence and terms of this Agreement confidential and shall not disclose or publish the same without the express written consent of GEOSHO.
8.4 Not allow the software to be used in anyway that would cause third party content providers to withdraw their services to the site
8.5 The obligations of this Clause 8 shall survive the termination of this Agreement without limit of time.
8.6 The Customer undertakes to GEOSHO to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 8.1 above by its employees agents and sub-contractors.
9. INTELLECTUAL PROPERTY
9.1 The Intellectual Property Rights and Confidential Information in the Software and Documentation are the exclusive property of GEOSHO or its licensors.
The Customer shall not during or at any time after completion, expiry or termination of this Agreement in any way question or dispute the ownership of such rights nor do anything which might bring into question GEOSHO’s ownership of such rights or their validity.
9.2 Save where expressly permitted by this Agreement or by applicable law, the Customer shall not:
(a) save as provided in Clause 10 below make back-up copies of the Software;
(b) copy, adapt, disassemble or reverse compile the whole or any part of the Software;
(c) assign, transfer, sell, lease, rent, charge, distribute, sub-license or otherwise deal in or encumber the Software or use the Software on behalf of any third party or make available the same to any third party;
(d) remove or alter any copyright or other proprietary notice on any of the Software or Documentation;
(e) use the Software other than as directed or approved by GEOSHO in writing or otherwise in any manner not contemplated by this Agreement;
(f) create derivative works based on the Software or Documentation;
(g) knowingly use or allow End Users to use the software for any illegal or harmful purposes;
(h) use GEOSHO or
9.3 The Customer shall:
(a) reproduce on any copy (whether in machine readable or human readable form) of the Software and Documentation GEOSHO’s copyright and trade mark notices;
(b) maintain an up-to-date written record of the number of copies of the Software and their location and upon request forthwith produce such record to GEOSHO; and
(c) notify GEOSHO immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Software or Documentation by any third party; and
(d) supervise and control the use of the Software and Documentation in accordance with this Agreement;
(e) 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 GEOSHO in the Software and Documentation; and
(f) in all correspondence and other dealings relating directly or indirectly to the Software and Documentation indicate that it is acting as licensee and not as the author, copyright holder or developer of the Software and Documentation.
9.4 In the event that new inventions, designs or processes evolve in performance or as a result of this Agreement, the Customer acknowledges that the same shall belong to GEOSHO unless otherwise agreed in writing by GEOSHO.
9.5 The Customer shall indemnify GEOSHO fully against all liabilities, costs and expenses which GEOSHO may incur as a result of work done in accordance with the Customer’s specifications involving infringement of any patent or other proprietary right.
10. COPYING OF PROGRAM MATERIALS
10.1 The Customer shall be entitled to make two (2) copies of the Software on any storage medium for back-up purposes only provided always that the Software shall not reside on more than one computer at any point in time for each license granted to the Customer. Any such copy shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Software.
Where all or part of the Documentation is provided in electronic format, the Customer may print one copy of such electronic documentation but shall not copy the printed materials comprising the Documentation.
11.1 GEOSHO will make good by repair or by the supply of replacement Software defects which under proper use, care and maintenance appear in the Software within a period of three (3) calendar months after the Software has passed the Installation And Configuration Tests .
11.2 If during the Remedy Period an apparent defect in the Software occurs and the Customer is unable to identify the cause of the apparent defect using proper skill and care following GEOSHO’s fault finding procedures then GEOSHO will at the Customer’s request and expense locate and rectify the apparent defect for the Customer provided that such work will be provided free of charge if a defect was due to GEOSHO’s faulty design materials or workmanship.
11.3 GEOSHO’s liability in respect of any fault or defect in the Software or any part thereof arising from design materials or workmanship shall be limited in all cases to the reasonable costs of replacing or repairing such a defective Software or any part thereof and shall not in any event exceed that part of the license Fee set out against such Software in Schedule 2.
11.4 GEOSHO shall have no liability to remedy a defect where such defect arises as a result of any of the following circumstances:
(a) improper use operation or neglect of the Software or the Designated Equipment;
(b) any unauthorised modification, alteration, repair or substitution of the Software or their merger (in whole or in part) with any other software by any person other than GEOSHO;
(c) the incompatibility of the Software with the Customer’s data or conversion by the Customer of its pre-existing data in order for it to conform to the requirements of the Software;
(c) the provision of data services to the customer’s implementation of the site from third party content providers is materially modified or changed without reasonable notice to either GEOSHO or the Customer, made unavailable, stopped by the provider for breaches of its obligations under any assigned terms of service;
(d) the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by GEOSHO;
(f) any breach by the Customer of any of its obligations under any the Maintenance Services Agreement, Support Services Agreement or Hosting Services Agreement in respect of the Software or the Designated Equipment;
the Customer’s failure to install and Use upon the Designated Equipment in substitution for the previous release any New Release or Maintenance Release of the Software within thirty (30) days of receipt of the same.
where Operating System or Network modfications from third parties are upgraded by the Customer or End user on their hardware without the relevant upgrade having been tested and approved by GEOSHO.
11.5 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Software, Documentation and the provision of the Services are hereby excluded. GEOSHO makes no warranty as to fitness for purpose and satisfactory quality are hereby excluded.
Except as expressly provided herein, the Software, Documentation and Services are provided during the term of this Agreement “as is”. GEOSHO gives no other representations, terms, conditions or warranties of any kind, either express or implied, statutory or otherwise, regarding the Software, Documentation and Services, and GEOSHO specifically disclaims any implied warranties and/or terms of satisfactory quality, fitness for a particular purpose or non-infringement. GEOSHO does not warrant that the Use of the Software will meet the Customer’s data processing requirements or that the operation of the Software (including where in machine-readable form the Documentation) will be uninterrupted or error free. Except as expressly provided herein, GEOSHO makes no representations regarding account, terrain, mapping or other data held on the system in terms of their correctness, accuracy, reliability or otherwise. GEOSHO is not aware of any virus or malicious code within the Software and uses industry standard anti-virus software and procedures to minimise the risk of viruses however GEOSHO does not warrant that the Software is free of viruses.
13. LIMITATION OF LIABILITY
13.1 Nothing in this Agreement shall operate to limit GEOSHO’s liability to the Customer
for death or personal injury resulting from its negligence or that of its employees, agents or sub-contractors.
13.2 Subject to Clause 14.1 above, GEOSHO’s entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Customer in respect of any breach of its contractual obligations arising under this Agreement, the Maintenance Services Agreement, Support Services Agreement and Hosting Services Agreement or any representation statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to the aggregate of license Fees paid by the Customer in the preceding twelve (12) months.
13.3 Subject to Clause 14.1 above, GEOSHO shall not be liable to the Customer for special, incidental, indirect or consequential loss or damage, including without limitation any direct or indirect loss or damages resulting from loss of use, loss of data, loss of third party content services, loss of profits, loss of goodwill, loss of business arising out of or in connection with this Agreement or the Software or loss or damage suffered by the Customer as a result of an action brought by a third party, even if such loss was reasonably foreseeable or GEOSHO had been advised of the possibility of the Customer incurring the same.
13.4 GEOSHO shall ensure the confidentiality of any personal data held on the product.
13.5 GEOSHO reserves the right to correct possible errors on the Software and more, generally, to modify, from time to time and without notice the Software or any part thereof. GEOSHO may not be held liable for any modification, interruption, or suspension of any Services that may result from these actions.
13.6 Nothing in this clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
13.7 GEOSHO’s liability to the Customer shall cease on termination of this Agreement.
14. TERM AND TERMINATION
14.1 This Agreement shall commence on the date of execution and shall continue for an initial period of 12 months and shall continue thereafter on a 12 monthly basis unless and until terminated by either party by giving thirty (30) days prior notice in writing to that effect to the other party to expire at the first initial period of 12 months or at any time thereafter subject always to the provisions for earlier termination contained in this agreement.
14.2 Without prejudice to any other provisions of this agreement either party may terminate this Agreement forthwith on written notice to the
(a) if the Customer fails to pay any sum due hereunder within thirty (30) days of
the due date;
(b) if the Customer commits a breach of any term of this Agreement, the Maintenance Services Agreement, Support Services or Hosting Services Agreement;
(c) if the Customer 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 Customer 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).
14.3 This Agreement shall terminate automatically on termination of the Maintenance Services Agreement.
14.4 Any termination of this Agreement pursuant to this Clause 14 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.
14.5 On termination of this Agreement for any reason:
(a) each Party shall immediately pay to the other all amounts due under this Agreement; and; and
(b) all rights and obligations of the Parties shall cease to have effect immediately upon termination of this Agreement except that termination shall not affect the accrued rights and obligations of the Parties at the date of termination; and
(c) all licenses granted under this Agreement shall terminate; and
(d) the Customer shall at GEOSHO’s sole option either destroy or return all copies of the Software and Documentation in its possession or control and a duly authorised officer of the Customer shall certify in writing to GEOSHO that the Customer has complied with its obligation as aforesaid.
15. FORCE MAJEURE
15.1 Save for a Party’s obligations to make payments when due, neither Party shall be deemed to be in breach of this Agreement or have any liability to the other in so far as it is prevented from performing its obligations under this Agreement by reason of any circumstances beyond its reasonable control.
16.1 No failure or delay to exercise, or a single or partial exercise of, any right or remedy under this Agreement shall be construed or operate as a waiver of it. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
16.2 Neither party shall be entitled to assign this Agreement nor any of its rights or obligations under it without the prior written consent of GEOSHO.
GEOSHO may assign this Agreement without reference to the Customer.
16.3 Any notice to be given hereunder shall be delivered or sent by first class post to the address of the other party set out in this Agreement (or such other address 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 forty-eight (48) hours after posting.
16.4 Nothing in this Agreement shall constitute any relationships of joint venture, partnership or agency. This Agreement may only be varied in writing signed by duly authorised representatives of both Parties.
16.5 This Agreement constitutes the entire agreement of the Parties with respect to its subject matter and supersedes all non-fraudulent prior representations, warranties, arrangements and agreements between them relating to it. Neither Party shall be entitled to rely on any non-fraudulent representation, warranty, arrangement or agreement which is not expressly contained in this Agreement. If any part of this Agreement is held to be invalid, unlawful or unenforceable it shall be severed from the remainder which shall continue to be valid and enforceable to the fullest extent permitted by law.
16.6 This Agreement shall be governed by the laws of England and Wales and the Parties submit to the non-exclusive jurisdiction of the English Courts. In the event that the Customer resides or is established outside of England and Wales, the place of supply and place of agreement shall be deemed to be the location of the main GEOSHO download server located in Wales and will therefore remain under the jurisdiction of the laws and courts of England and Wales.
IN WITNESS WHEREOF the parties have signed by their duly authorised representatives on the date first above written:
1. The Software
The license granted in this Agreement shall apply in respect of the following
GEOSHO locative platform – governed in part by GNU AFFERO GENERAL PUBLIC LICENSE
Version 3, 19 November 2007 http://www.gnu.org/licenses/agpl-3.0.html
The license granted to the Customer in this Agreement is for the UK and EU.
1. Setup Fees
The Customer shall pay GEOSHO the following fees in respect of the license of the Software:
Professional Services –
£ 475/day plus reasonable expenses
To include (but not exclusive to : Setup, Modifications & amendments according to , Testing.
Payment terms –
Set up fee – 100% of License fee on initiation of contract.
Professional Services – 45% on initiation of contract. 40% on delivery of all components as described. The balance to be paid on acceptance by Customer.
Support contract does not commence until acceptance received from the Customer this to be payable from date of acceptance.
2.Maintenance and Support Fees
For the duration of the first twelve months of the Initial Period (as defined in the Maintenance Services Agreement), the Maintenance Fee shall be included within the Setup and monthly Fees set out above. Thereafter, the Customer shall pay the following in respect of the Maintenance and Support Services:
20% of the annual total monthly or where appropriate annual fees paid on an annual basis.
(For first twelve months of the agreement). GEOSHO reserves the right based on usage of these services during the first twelve months to notify and provide the Customer with revised Maintenance and Support Fees.
3. Hosting Fees
Where applicable – The Customer shall pay GEOSHO the following fees in respect of the Hosting Services:
£ per month TBA
1. license Fees
The Customer shall pay GEOSHO the following fees in respect of the license of the Software:
£… (for the duration of the Initial period).
MAINTENANCE SERVICES AGREEMENT
1. Save as provided in this Maintenance Services Agreement, capitalised terms shall have the meanings given in the Software license and Maintenance Agreement. Clauses 3 (Services), 4 (Fees), 8 (Confidentiality), 9 (Intellectual Property), 14 (Disclaimer), 15 (Limitation of Liability), 16 (Termination), 17 (Force Majeure) and 18 (General) of the Agreement shall where appropriate be deemed to be repeated in full in this Maintenance Services Agreement.
2. In consideration of the payment of the Maintenance Fee, GEOSHO will supply the Maintenance Services as set out in this Maintenance Services Agreement for the duration of this Maintenance Services Agreement.
3. GEOSHO shall provide to nominated representatives of the Customer access to a telephone help line exclusively for Software-related problems between the hours of 9:30 am and 5 pm (GMT) Monday to Friday (excluding UK Public Holidays).
4. GEOSHO shall use all reasonable endeavours to correct critical errors in the Software within a reasonable time having regard to the severity of the error (as determined by GEOSHO) or shall provide assistance to overcome specific problems with the Software. GEOSHO may, in its sole discretion, correct any errors by Maintenance Release as described in paragraph 6 below.
5. GEOSHO shall use at its discretion remote fault diagnosis. Should the customer not agree to this, the Customer will be liable for all costs suffered in the diagnosis and assistance in overcoming any problems with the software.
6. GEOSHO may from time to time issue Maintenance Releases for the installed version of the Software.
7. It is a condition of this Maintenance Services Agreement that the Customer shall:
(a) report all errors in the Software promptly on discovering the same;
(b) permit GEOSHO or its designated third party access to the Site during working hours as may be required by GEOSHO for the purpose of diagnosing and correcting errors in the Software;
(c) provide to GEOSHO all information available to the Customer relating to the error to enable GEOSHO to properly diagnose the cause of the error and assess the severity of the error;
(d) comply with all reasonable instructions given by GEOSHO in relation to the correction of the error; and
(e) install such Maintenance Releases as soon as is reasonably practicable following the Customer’s receipt of the same from GEOSHO;
(f) comply with all third party content provider terms and conditions of service;
7. The Parties agree that the Software relies for its operation on the use of third party APIs and Services which are periodically changed by the Providers of these Services. GEOSHO will use all reasonable efforts to ensure that the Software will continue to operate correctly upon the introduction of modifications to these API’s if sufficient and reasonable notice is provided to GEOSHO and that these modifications are compatible with the services provided by the GEOSHO platform and mobile applications.
8. GEOSHO reserves the right to withdraw Maintenance Services for obsolete versions of the Software by giving the Customer twelve months notice in writing. During this period the Customer will be given the option to upgrade to the current version of the Software at a discount to the current list price.
9. Subject to This Maintenance Services Agreement shall commence on the Commencement Date and shall continue for a minimum period of three years (“Initial Period”) and shall continue thereafter until terminated:
(a) at any time within the Initial Period by the Customer on giving GEOSHO three (3) calendar months notice in writing, such notice to
(b) expire at the end of the Initial Period; or
(c) at any time after the expiry of the Initial Period by either party giving to the other not less than three (3) calendar months notice in
(d) writing expiring on the third anniversary of the Commencement Date provided that a valid annual Maintenance Fee has been paid in advance.
10. The license granted to the Customer under the Agreement shall expire immediately upon termination of this Maintenance Services Agreement.
11. The following are not included within the Maintenance Services Agreement and shall be charged for additionally on a time and materials basis at the Agreed Rates:
(a) Support of other software, accessories, attachments, machines, systems or other devices not supplied by GEOSHO.
(b) Rectification of lost or corrupted data arising for any reason other than GEOSHO’s own negligence.
(c) Support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Software or operating environment initiated by the Customer.
(d) Attendance to faults caused by the Customer’s use of the Software outside the provisions laid down in any Documentation or contrary to GEOSHO’s instructions.
(e) Diagnosis and/or rectification of problems not associated with the Software.
HOSTING SERVICES AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 Save as provided in this Hosting Services Agreement, capitalised terms shall
have the meanings given in the Software license and Maintenance Agreement. Clauses 3 (Services), 4 (Fees), 8 (Confidentiality), 9 (Intellectual Property), 14 (Disclaimer), 15 (Limitation of Liability), 16 (Termination), 17 (Force Majeure) and 18 (General) of the Agreement shall where appropriate be deemed to be repeated in full in this Maintenance Services Agreement
1.2 In this Hosting Services Agreement unless the context otherwise requires:
“Linx Network” means The London Internet Exchange Peering point; “Network Boundary” means the port through which the hosted system is accessed; whether this is accessed via terrestial (cable) or mobile (wireless) network providers.
“Server Network” means the currently deployed GEOSHO systems (servers, hardware and associated software) that are responsible for delivering the Hosting Services;
“Scheduled Maintenance” mean any maintenance performed to the GEOSHO Service of which Customer is notified 48 hours in advance. Notice of Scheduled Maintenance will be provided to Customer’s designated point of contact by email; and
“Service Outage” means the GEOSHO Servers were unavailable for more than thirty (30) consecutive minutes.
This Hosting Services Agreement applies to GEOSHO locative platform and services provided to the Customer.
3.1 GEOSHO guarantees 98% availability using redundant servers.
3.2 The following downtime events shall not be considered part of a Service Outage:
(a) Scheduled Maintenance; or
(b) Unavailability of the Services due to Customer misuse, application programming, non-performance or other negligent or unlawful acts by Customer or its agents or its suppliers, problems with, access to third party content API’s, Customer’s registrar, network unavailability outside of the GEOSHO Server Network; or
(c) events of Force Majeure.
3.3 GEOSHO, in its sole discretion, shall determine whether an event will be considered a “Service Outage” based on its records and data.
4.1 When Customer becomes aware of a Service Outage, Customer shall inform GEOSHO Customer Support within two (2) calendar days.
4.2 If GEOSHO determines in its reasonable commercial judgement that the Service Outage event lasted more than eight (8) consecutive hours during a calendar month, GEOSHO, upon Customer’s request, will credit Customer’s account for ten percent (10%) of the Customer’s previous month’s Hosting Fee for every one percent (1%) reduction in availability for the calendar month up to a maximum of credit of one hundred percent (100%) of the previous months charges.
4.3 To qualify for any credit, Customer must have a current and valid subscription for the Services directly with GEOSHO and must have an account in good standing with GEOSHO.
4.4 Customer’s account shall not be credited more than once per month under the Service Level Agreement – (Schedule 6)
4.5 Service Credits are the sole and exclusive remedy if GEOSHO does not meet the commitments set forth in this Hosting Services Agreement.
ADDITIONAL WORKS AND Customer SPECIFIED MODIFICATIONS
[INSERT DESCRIPTION OF WORKS HERE]
SERVICE LEVEL AGREEMENT
Customer Support Service:
GEOSHO will provide the following Customer Support Services
Customer Support Help Desk – 09:30 to 17:00, Monday to Friday (not including UK Bank Holidays).
GEOSHO will provide Help Desk Services to respond to customer service and technical questions and enquiries. The staff will be knowledgable personnel with appropriate technical and communication skills. They will aim to assist customers in resolving Product or Service issues and to impart necessary relevant knowledge or understanding related to the GEOSHO product(s) or Service(s).
Such individuals shall be contactable via the appropriate Telephone numbers and e-mail addresses.
The appropriate contact details for all help desk communications are as follows:
Telephone 01286 673441
e-mail – support@
THe following information will be required when reporting an incident to the help desk.
Customer Contact name and contact details (telephone number and e-mail address
Short description of the problem
GEOSHO will provide the Customer with a unique incident reference number and a classification and estimated resolution time based on the incident severity level detailed below.
The following information will be required when a status update is required on any previously reported incident. GEOSHO site reference no. and the relevant incident reference number.
Upon the successful resolution of the incident. GEOSHO will notify the merchant via e-mail and the case will be closed.
Faults; Priorities and responses.
For the purpose of prioritising and escalating GEOSHO faults, faults will be categorised as either Critical, Severe, Degraded or Minimal
INCIDENT SEVERITY LEVEL TABLE
The target time for GEOSHO to respond to all faults is outlined below, the target time being from receipt and logging of fault notification. GEOSHO will update the customer at the target interval indicated until a solution is found.
The following shall define the actions to be taken per the problem’s assigned level:
Step 1 – represents the acknowledgement of the problem and the beginning of the information gathering process. GEOSHO will notify the Customer on identification of the problem if an incident has not already been reported and classified.
Step 2 – represents the target time frame during which the problem is being actively addressed and a temporary patch, correction or workaround is provided. The goal will be to provide a fix or a work-around for the problem as soon as possible. Critical problems will be worked on continually until a satisfactory problem resolution can be reached.
Step 3 represents the target time within which a permanent solution will be made available which meets GEOSHO’s internal quality standards and tests.
Incidents reported to the GEOSHO Help Desk will be escalated in line with the details below. GESOHO management will be made aware of issues according to the below timeframes. Elapsed time represents the number of clock hours that have passed since the issue was first classified by GEOSHO. Resolution is deemed to have been achieved if a temporary fix is released.
Chief Technical Officer- if Level 1 or 2 are not resolved within 1hr of target resolution time.
Managing Director – If level 1 or 2 are not resolved within 2hrs of target resolution time, if level 3 if not resolved within a period of 12hrs of target resolution time.
GEOSHO does not control the availability of associated third party service i.e. Google Maps / OSM / Bing or the Customer’s networks. System will not be deemed unavailable if the source of the problem lies with an associated third party or the Customer’s networks.
The burden of proof as to where the problem occurred lies with GEOSHO. GEOSHO will take all commercially reasonable efforts to work with third parties to ensure the speedy resolution of any problems.
GEOSHO’s business is based on Data, your Data. As a result we believe strongly in protecting our Customer’s data and your privacy. We will not wilfully disclose information about our Customers without first receiving that Customer’s consent.
1) Information gathered and tracked on our website(s) and services and what we do with this information
At GEOSHO we strive to provide visitors and users of our website(s) with a compelling reason to come back and a consistent experience of our services and content whether from their desktop, laptop or smartphone’s browser. in order to help us monitor and improve the user’s experience of our site(s) we gather the following information in aggregate form. Browser type, Device Type, Operating System, IP address and Domain. In addition to this we also use and monitor usage of the site(s) using third party analytic systems which helps us to identify how visitors and users of our site(s) are using our site.
Information gathered during the application process.
GEOSHO’s application process requires customers to provide contact and billing information (Such as names, addresses, e-mail addresses, telephone numbers) in order to use the services that GEOSHO provides. Billing information that is collected is used to bill the customer for the use of services, license fees, consultancy, support & maintenance etc. GEOSHO’s checking processes might involve carrying out credit searches using third parties,
Customer Contact information is used for accounting & support purposes and for when necessary.
3) Sharing of this information
GEOSHO will not sell, rent, share, trade or give away any customer’s personal information that is stored on our databases. We reserve the right to share our mailing list with companies or organisations that are offering products via our services. Customers can elect to have their details removed by following the procedure outlined in Section [N} below.
Correspondence and e-mails sent to GEOSHO by its customers and/ or enquiries from third parties will be held on our files / e-mail systems and may occasionally be used for testimonial purposes or for the purposed of quality reviews. Access to this information may be provided to the customer in question if requested.
Our Site(s) and services might contain links to sites (or external services such as site analytics). GEOSHO is not responsible for the privacy practices or content of these sites.
GEOSHO is committed to the security of its customer’s information. GEOSHO has security procedures in place to protect the loss, misuse or unintended alteration of Customer information under GEOSHO’s control.
Access to all information held under GEOSHO’s control is restricted internally.
All GEOSHO employees, contractors and third party data processors who might have access to, or are associated with the processing of personal information are obliged to observe the confidentiality of our customer’s personal data.
GEOSHO provides it customers and other contacts with the opportunity to opt-out of receiving communications from us and other selected organisations by selecting the unsubscribe option at the footer of the e-mail or by e-mailing email@example.com.
Signed for and on behalf of GEOSHO Cyf.
Name: Paul Sandham
Title: Managing Director
Signed for and on behalf of the Customer