PRODUCT LICENSING TERMS AND CONDITIONS
1. DEFINITIONS
1.1 Unless the context otherwise requires, in these terms:
“Commencement Date” means the date the IP is issued to the Customer
“Customer” means the party specified in Part A on the Order Form.
“DoF” means the Department of Finance of Northern Ireland;
“Derivative Works” means any and all works that are created by the Customer and/or End User from and/or based in any way on the IP;
“End-User” means an employee of the Customer whether employed on a part-time or full-time basis, not including subcontractors, consultants or freelancers
“Intellectual Property” (“IP”) means the digital data licensed by the VAR from LPS and utilised in and/or incorporated into and/or on which the VAR’s product is based and/or supplied to the Customer, under these terms and conditions. It also means databases, utility models, Trade Marks, trade names, service marks, know-how, designs, drawings, algorithms, computer programs and confidential information;
“Intellectual Property Rights” (“IPR”) means (as appropriate) Copyright, database right, and all other similar proprietary rights (whether registered or not) in the IP owned by the Crown through the Keeper of Public Records as may exist anywhere in the world and licensed under these terms and conditions and all applications and rights to apply for the protection of any of the foregoing. It also means rights in patents, utility models, Trade Marks, trade names, service marks, design rights, know-how, designs, drawings, algorithms, computer programs and confidential information or any other process or other similar right or assets capable of protection;
“Initial Period” means a period of twelve (12) months from the date of first licensing. For the benefit of any doubt the date of first licensing shall be the date the IP is issued to the Customer;
“Internal Business Use” (“IBU”) means solely and explicitly for the requirements of the Customer’s business, for the internal administration and for the internal day-to-day activities involved in the operation of the Customer’s business;
“LPS” means Land & Property Services;
[“Part PAF” means use of postcode and / or post town elements of PAF (without inclusion of any other PAF Elements) utilised as set out in Clause 9.]
“Renewal Date” means the date on which the Customer Licence shall be due for renewal. This shall be the anniversary of the Commencement Date. The Customer shall give written notice to the VAR requesting renewal of the licence.
“RMG” means Royal Mail Group Ltd, which has licensed the Postcode Address File (PAF®) to LPS.
“Third Party Content” means the intellectual property supplied under agreement by RMG. “PAF Elements” include postcode, organisation name, post town and/or Unique Delivery Point Reference Number (UDPRN) which are utilised in Our “Pointer”, Central Postcode Directory (“CPD”) and “Property Data” products. .
1.1.1 References to any statute or statutory provision shall include a reference to any statute or statutory provision, which amends or replaces or has amended or replaced it and vice versa and the same shall apply to statutory instruments;
1.1.2 These terms shall be binding upon and shall continue for the benefit of the successors and assigns of LPS or DoF as the case may be.
2. OWNERSHIP
The Crown owns absolutely, as beneficial owner, all rights in the IP (with the exception of the Third Party Content). All IP licensed to the Customer under these terms remains the property of the Crown who, through the Keeper of Public Records, has given delegated authority for licensing to the Chief Executive of LPS.
3. GRANT OF LICENCE
3.1 In consideration of the Customer paying the licence fee, and performing its obligations under these terms, the Value Added Reseller (VAR) grants the Customer a non-exclusive, non-transferable licence for the Initial Period of twelve (12) months from the date of first licensing to use the IP solely for the licensed use.
3.2 This Licence shall commence from the Commencement Date and shall continue for a minimum period of twelve (12) months or until earlier termination.
3.3 This licence shall be renewable on the Renewal Date by the Customer giving written notice to the VAR requesting a renewal of the licence.
3.4 The Customer shall not permit any third party to use the IP nor use the same on behalf of or for the benefit of any third party without the VAR’s prior written consent.
3.5 The Customer shall have no right to use the IP other than as expressly set out in these terms and conditions.
4 LICENSED USE
4.1 When granted the licence permits the use of the product, listed overleaf, within the Customer’s own office for its own IBU for:
• Copying for back up purposes
• Adapting
• Merging
• Integrating
All other uses are Prohibited.
5. SUPPORT AND MAINTENANCE
LPS will not be obliged to provide support and maintenance services. Any support and maintenance will be the responsibility of the VAR.
6. THE CUSTOMER’S OBLIGATIONS
6.1 The Customer will take all reasonable technological and security measures to ensure that all IP and value added IP which the Customer holds or is responsible for is secure from unauthorised use or access.
6.2 The Customer will notify the VAR as soon as it suspects any infringement or other breach by a third party of the IP rights and will give LPS all reasonable assistance (at LPS’ reasonable cost) and comply with all reasonable instructions from LPS in its pursuit of any infringement. The Customer shall not be entitled to conduct any legal proceedings relating to the IP, including any action in respect of any infringement or suspected infringement of the IP except as stated above.
6.3 The Customer will not use the IP, or allow it to be used by others, in any manner which LPS reasonably feels is inconsistent with the goodwill in its name.
7. SUB-LICENCES
7.1 The Customer shall not be licensed under these terms to grant Sub-Licences without the VAR’s prior written agreement, such Sub-Licence to be in the form held by the VAR.
7.2 Sub-Licences will only be granted where the Customer needs to temporarily transfer the IP to a third party to enable said third party to assist in the operation of the Customer’s Internal Business Use.
7.3 The Customer shall not make any amendments to the Sub-Licence without first obtaining the written approval of such variation from the VAR.
7.4 No Sub-Licence may be granted for a period of more than six (6) months unless otherwise agreed in writing by the VAR; and
7.4.1 will not extend beyond the term of this Licence
8. CONFIDENTIALITY
Unless required by law, the VAR and the Customer agree not to disclose the fact or content of these terms to any third party, other than to LPS or to make any public or press announcement regarding these terms or the transactions contemplated hereunder without obtaining the prior written consent of LPS and the other party to both the disclosure and the content of the disclosure.
9. LICENCE FEES AND ROYALTIES
9.1 The licence fee shall be payable by the Customer from the Commencement Date of this licence and on each subsequent Renewal Date.
9.2 When ordering digital data, the Customer will provide the VAR with an estimate of the number of hard copies that will be made from the digital data requested and the royalty fees payable for such copies are noted in section B on page 1 of this Agreement.
9.3 The VAR will invoice the Customer for the Royalties due in accordance with this licence. In addition, the Customer will pay VAT and any other taxes at the rate prevailing on the date of the invoice.
DRAFTING NOTE – remainder of Clause 9 can be replaced with clause that confirms and includes details of the Agreement between You and TPCP that Customer can use PAF
9.4 [Where the Customer receives the PAF Elements in the Customer’s use of the IP, RMG requires that the Customer pay royalties (unless the Customer has indicated in Section [B] of the Customer’s Purchase order Form that the Customer holds a valid and current RMG PAF® Corporate Licence, Public Sector Licence or Charitable Organisation Licence)and that the Customer’s use of PAF is subject to the terms and conditions set out in Appendix 2.
9.4.1 Where the customer takes out an annual licence for the use of PAF Elements within the VAR’s Products and/or Services [and /or the IP] for Internal Business Use this will incur licence fees of:
• £1.55 per single End User; or
• £38.75 per block of 300 End Users; or
• Combination of single End User and Block(s) of up to 300 End Users to suit the Customer’s needs;
these fees shall be paid by the Customer to the VAR on behalf of RMG.
9.4.1.1 When requested by the VAR, the Customer shall declare in writing the number of End Users being licensed to access the IP (using the declaration form attached in Appendix 1) of this Customer Licence Application form.
9.4.2 where the Customer receives PAF Elements within the VAR’s Products and/or Services [and /or the IP] for Internal Business Use from the VAR on a per transaction basis, the licence fee set out in 9.4.2.1 shall be due to the VAR on behalf of TPCP;
9.4.2.1 per transaction licence fee will be calculated at the rate of:
◦ Part PAF elements received calculated at the rate of £1.53 per 100 transactions
9.4.3 where the Customer chooses to use PAF Elements within the VAR’s Products and/or Services on the Customer’s website Customer shall pay an additional RMG’s annual website use licensing fee as set out in 9.4.3.1; and
the Customer must ensure:
• An estimated number of transactional clicks to be used is reported to the VAR at the start of the licence period;
• That the Customer will retain the rationale for this estimated use in case RMG request said rationale.
9.4.3.1 the annual website use licence fee applied will be:
£4,493.50 per annum where Part PAF elements are used.
9.4.3.2 where the Customer estimates there will be more than 10 million transactions The VAR will collect RMG’s High Use Licence Fee of £7,525.00 from the Customer as an additional fee to that outlined in 9.4.3.1;
9.4.3.3 Where the Customer does not use PAF Elements on a website, no additional royalties will be due to RMG.
9.4.4 Where the Customer does not receive PAF Elements no PAF royalties will be due to RMG).
10. AUDIT RIGHTS
10.1 Throughout the duration of this License the Customer shall keep and maintain accurate complete and detailed records relating to all the transactions and uses contemplated by or arising out of these terms.
10.2 Upon giving reasonable written notice, LPS and/or the VAR, their advisors or representatives shall have the right to inspect (and where necessary take copies of) the records referred to in Clause 10.1. If upon inspection it is determined that there is an underpayment of the amount properly payable to the VAR under these terms, the underpayment shall be paid to the VAR forthwith together with interest at the rate of eight (8) percent above the base rate of Ulster Bank Limited from the date payment was due until full payment whether before or after judgement. If there is an underpayment of five (5) percent or more of the amount properly payable at any time to the VAR under these terms then the Customer shall also be responsible for the reasonable auditing costs incurred by LPS and/or the VAR (including the fees of any third party used for such purposes).
10.3 The Customer shall give LPS and/or the VAR and their advisors and representatives all reasonable access to its premises and use of all its facilities so as to enable LPS and its advisors and representatives to fulfil their rights under Clause 10.2.
11. IP RIGHTS
11.1 The Customer acknowledges the Crown’s ownership and proprietary rights in the IP and agrees and acknowledges that:
11.1.1 The Customer will not obtain any rights in the IP, except as expressly granted to it under these terms; and
11.1.2 The Customer will not register or attempt to register any of the IP in any jurisdiction without prior written permission.
11.1.3 All hard copies must carry the following note: “This is Crown Copyright and is reproduced with the permission of Land & Property Services under delegated authority from the Keeper of Public Records , Ó Crown Copyright and database right [insert year] VARCA 100xxx”.
Where the reproduction is not solely confined to the IP the words “Based upon” should be inserted after “This is” and before the words “Crown Copyright” in the acknowledgement.
The note “Ó Crown Copyright and database right [insert year] VARCA100xxx” will be sufficient for a finished reproduction of less than 200 sq centimetres.
12. LIABILITY
12.1 Nothing in this Licence excludes or limits liability for:
12.1.1 death or personal injury caused by negligence by the Customer and / or the VAR and / or LPS and/or the Customer and/or the VAR and / or LPS’ servants and / or agents;
12.1.2 fraud or fraudulent misrepresentation the Customer and / or the VAR and / or LPS and/or the Customer and/or the VAR’s and / or LPS’ servants and / or agents; or
12.1.3 any liability which cannot legally be excluded or limited; or
12.1.4 unlicensed use of any Intellectual Property Rights
12.2 The VAR will remedy as soon as reasonably practicable (which may not be until the next release) any error in or omission from the IP of which the Customer notifies the VAR.
12.3 It is the Customer's responsibility to ensure that IP is suitable for the Customer's intended purposes. Neither LPS nor the VAR accept any liability as to the fitness of the IP supplied in meeting the Customer's needs and both LPS and the VAR exclude to the fullest extent permissible by law all warranties, conditions or terms that may be implied by statute, statutory instrument, common law, custom or otherwise.
12.4 LPS will indemnify the Customer and hold it harmless 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 Customer's possession and/or use of LPS IP infringes the copyright, Trade Mark rights or other IP rights of a third party (‘IP Infringement’) provided that:
12.4.1 The Customer's possession and/ or use of the IP is pursuant to and in accordance with these terms and conditions.
12.4.2 The Customer gives the VAR notice of any IP Infringement immediately on becoming aware of it; and
12.4.3 The Customer gives LPS the sole conduct of the defence above (LPS will pay reasonable costs) to any claim or action in respect of an IP Infringement and does not at any time admit liability or otherwise settle or compromise the said claim or action except upon LPS' express instructions.
12.5 LPS shall have no liability to the Customer in respect of an LPS IP Infringement if:
12.5.1 The same results from any use of the IP by the Customer other than in accordance with these terms; or
12.5.2 The same results from the use of the IP for a purpose for which it was not designed; or
12.5.3 There is any breach by the Customer of its obligations under these terms; or
12.5.4 There has been any alteration, modification, adjustment or enhancement made by the Customer to the IP that was not authorised by LPS; or
12.5.5 There has been any combination, connection, operation or use of the IP with any other equipment, software or documentation and such combination, connection, operation or use was not within the contemplation of the parties at the time of delivery of the IP.
12.6 In the event of an IP Infringement, LPS shall be entitled at its own expense and option either to:
12.6.1 Procure the right for the Customer to continue using the IP;
12.6.2 Make, where relevant, such alterations, modifications or adjustments to the IP so that it becomes non-infringing without incurring a material diminution in performance or function; or
12.6.3 Replace, where relevant, the IP with a non-infringing substitute provided that such substitute does not entail a material diminution in performance or function (where relevant).
12.7 If LPS in its reasonable judgment is not able to exercise any of the options set out in Clause 12.6 above within ninety (90) days of the date that LPS receives notice of the IP Infringement, LPS will accept the return of the infringing IP.
12.8 This Clause sets out the Customer’s exclusive remedy and LPS' sole liability in respect of any breach of warranty concerning any IP Infringement.
12.9 The Customer shall be liable for, and will indemnify LPS against any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by LPS whether direct or consequential (including but without limitation any economic loss or other loss of profits, business or goodwill) arising out of any dispute or contractual, tortious or other claim or proceeding brought against LPS by reason of the manufacture, use or sale of any goods and services or the use by the Customer of the IP.
12.10 Subject to clause 12.1,
The VAR and / or LPS are not liable, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Licence for any:
12.10.1 loss of profit;
12.10.2 loss of revenue;
12.10.3 loss of business;
12.10.4 costs;
12.10.5 charges;
12.10.6 expenses; or
12.10.7 loss of anticipated savings;
12.10.8 indirect, special or consequential loss;
12.10.9 indirect, special or consequential damage;
however arising.
Such limitation shall not apply for indemnification claims under clause 12.4.
12.11 The Customer warrants that in entering into this license it has not relied on any undertaking, promise, assurance, statement, representation, warranty or understanding relating to the IP other than as expressly set out in this Licence.
13. PERIOD OF AGREEMENT AND TERMINATION
13.1 These terms shall be effective from the commencement date, subject to the provisions of this Clause 13 and shall continue in force for the period of the licence.
13.2 The VAR shall be entitled forthwith to terminate this licence by written notice to the Customer if:
13.2.1 The Customer commits any continuing or material breach of any of the provisions of these terms and, in the case of such a breach which is capable of remedy, fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
13.2.2 An encumbrancer takes possession or a receiver is appointed over any of the property or assets of the Customer;
13.2.3 The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order;
13.2.4 The Customer goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganisation and in such manner that the company resulting from the reorganisation effectively agrees to be bound by or to assume the obligations imposed on that other party under these terms);
13.2.5 The Customer ceases, or threatens to cease, to carry on business; or
13.2.6 There is a change of control of the Customer within the meaning of Section 719 of the Corporation Tax Act 2010.
13.3 For the purpose of Clause 13.2.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
13.4 Termination or expiry of these terms shall not affect the parties’ accrued rights and remedies.
13.5 In the event of termination (howsoever caused) or expiry of these terms:
13.5.1 the relationship of the parties will cease save as (and to the extent) expressly provided for in this Clause 13;
13.5.2 the provisions of Clauses 1 (Definitions), 8 (Confidentiality), 10 (Audit Rights), 11 (Intellectual Property Rights), 12 (Liability), 13 (Period of Contract and Termination), 22 (Law) and 23 (Data Protection) shall survive the expiry or termination of this Licence and will continue in full force and effect;
13.5.3 Any licence granted to the Customer shall immediately cease;
13.5.4 subject to Clause 13.5.5 at LPS option (but at the Customer’s expense) the Customer shall either destroy the IP in its possession, power or control, (including any security copy and/ or any Derivative Works) or return the IP to LPS. The Customer shall also procure that an officer or duly authorised executive provides a sworn statement of truth or affidavit verifying that this has been done.
13.5.5 if the Customer is required by
any law, regulation or government or regulatory body to retain any documents, IP or materials relating to the IP which the Customer would otherwise be required to destroy or return by Clause 13.5.4 You shall:
13.5.5.1 notify the VAR in writing of such retention, giving details of the documents, IP or materials relating to the IP that the Customer must retain; and
13.5.5.2 certify that said documents, IP or materials relating to the IP will solely be used to satisfy this obligation; and
13.5.5.3 not disclose the copy of the IP retained under this clause 13.5.5 to any regulator or other third party except strictly to the extent necessary for the relevant purpose and in paper or read-only electronic format only.
14. PREVENTION OF CORRUPTION & BRIBERY ACT 2010
14.1 The parties each warrant and undertake (and each party shall procure that their employees and/ or sub-licensees shall undertake) that they comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery, anti-corruption and prevention of fraudulent acts including the Bribery Act 2010;
14.2 Each party shall promptly notify the other party to this Contract of and any request or demand for any undue financial or other advantage of any kind offered or received in connection with the performance of this Contract;
14.3 Any breach of this Clause 14 by either party or any of the party’s employees and/or Sub-licensees shall entitle the other party, with no liability whatsoever to the other party, to terminate the agreement with immediate effect by notice in writing.
15. EVENTS BEYOND THE CONTROL EITHER PARTY
15.1 Neither party shall be liable for any delay in performing or failure to perform its obligations (other than a payment obligation) under these terms due events beyond their control. Such delay or failure shall not constitute a breach of these terms and the time for performance of the affected obligation shall be extended by such period as is reasonable.
15.2 The party claiming events beyond their control shall notify the other party in writing of the reasons for such an event (and the likely duration, which should not be in excess of three (3) months) promptly after the occurrence of the same and should use their reasonable endeavours to minimise the effect and duration of the event.
16. ASSIGNMENT
The Customer shall not be entitled to assign, novate or transfer the whole or any part of the benefit of this Licence or any obligation under it to any party.
17. EXCLUSIVITY
These terms are not exclusive.
18. SEVERABILITY
If any provision of this Licence is held to be unenforceable, invalid or illegal that shall not affect the enforceability, validity or legality of any other provision.
19. WAIVER
No failure or delay by any party in exercising any right, power or privilege under this Licence shall impair such right, power or privilege or be construed as a waiver thereof. The rights and remedies of any party herein provided are cumulative and not exclusive of any rights and remedies provided by law.
20. NOTICES
All notices which are required to be given under this Licence shall be in writing and shall be sent to the address of the recipient set out on page one (1) or such other address as the recipient may designate by notice given in accordance with these terms.
21. ENTIRE AGREEMENT
These terms represent the entire agreement and understanding between the parties with respect to the subject matter.
22. LAW
These terms and conditions shall be governed by and construed in accordance with the laws of Northern Ireland but with liberty for the parties hereto to have resort to the courts of any competent jurisdiction.
23 DATA PROTECTION
23.1 Any Personal Data* you provide will only be used for the performance of your contract with LPS as set out in the LPS privacy statement found at: https://www.finance-ni.gov.uk/publications/lps-privacy-notice
*”Personal Data” shall have the same meaning as is set out in s.3 Data Protection Act 2018.
23.2 None of the products available from LPS/OSNI contain Personal Data.
23.3 If, during the Customer’s Licenced Use of the IP, the Customer incorporates or combines any Personal Data with the LPS IP in the course of the Customer’s IBU the Customer acknowledges and accepts that the Customer shall:
23.3.1 be solely responsible for ensuring all Data Protection Legislation is adhered to and complied with; and
23.3.2 Keep both LPS and the VAR harmless from any and all claims or liability for any breach of data protection legislation arising from any datasets the Customer incorporates or combines with the LPS IP.