Last updated – January 2024 (v24.01-01)

Software Licence Agreement (NCE)

Terms & Conditions

This Agreement is made on: date and is made between:

PARTIES

(1) Strategy 365 Limited
a company registered in England & Wales under company number 10480400 whose registered office is at The Old Chapel, Blakeley Lane, Dilhorne, Stoke-on-Trent, Staffordshire, ST10 2PS (“Supplier”); and

(2) The Customer

BACKGROUND

The Supplier is a Microsoft Indirect Reseller (via Microsoft Indirect Providers) of the Software Licence (as defined below) and wishes to supply the Software Licences to the Customer subject to the Terms and Conditions of this agreement (“Agreement”).

AGREED TERMS

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
“Business Day” a day other than a Saturday, Sunday, or public holiday in England when banks in England are open for business.
“End Date” the date specified on the Software Licence Order Form or the Software Licence Amendment Confirmation, as the case may be, which is the last day of a Term Period, for any given Subscription.
“First Start Date” the earliest Start Date, which is the first date on which the Supplier provides any Software Licence to the Customer.
“Initial Term” the term commencing on the First Start Date and continuing for the Term Period subject to adjustment in accordance with clause 2.3.
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Licence Type” a specific Software Licence and Term Period.
“Microsoft Customer Agreement” the additional terms and conditions set out in Annex A relating to the Software Licences.
“Price” the price payable by the Customer to the Supplier under clause 4.
“Start Date” the date specified on the Software Licence Order Form, which is the date on which Software Licences, or any new Subscriptions, are supplied to the Customer.
“Software Licence” the software programs supplied by the Supplier to the Customer during the subsistence of this Agreement as may be set out in the Software Licence Order Form or Software Licence Amendment Confirmation.
“Subscription” a quantity of Software Licences of the same Licence Type which will all have the same Term Period and End Date.
“Term Period” the period of commitment for each Subscription as specified on the Software Licence Order Form or the Software Licence Amendment Confirmation.
“Terms and Conditions” the terms and conditions set out in clause 1 to 9 (inclusive)

1.2 Clause, Schedule, and paragraph headings shall not affect the interpretation of this Agreement.

1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.5 References to clauses are to the clauses of this Agreement.

1.6 The Annex forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annex.

2. Commencement Date and Term

2.1 This Agreement shall commence on the date when it has been signed by all the parties and shall continue unless terminated in accordance with its terms.

2.2 Unless terminated in accordance with clause 8, this Agreement shall continue for the Initial Term, subject to adjustment under clause 2.3, and at the end of the Initial Term shall automatically extend for the Term Period (“Subsequent Term”) and at the end of each Subsequent Term subject to clause 2.3. Either party may give written notice to the other party, no later than 30 days before the end of the Initial Term or the relevant Subsequent Term, to terminate this Agreement at the end of the Initial Term or relevant Subsequent Term, as the case may be.

2.3 In the event that the Customer adds a new Subscription, the Initial Term or each Subsequent Term shall be extended so that the Term Period of the new Subscription commences on the Start Date set out in the Software Licence Order Form relating to such increase and ends on the End Date specified in the Software Licence Order Form.

3. Software Licences

3.1 The license of the Software Licences is granted to the Customer pursuant to the Microsoft Customer Agreement and use of the Software Licences shall therefore be subject to the Microsoft Customer Agreement which the Customer agrees to enter into and is deemed to have accepted by entering into this Agreement.

3.2 The Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of any Microsoft Customer Agreement howsoever arising.

3.3 The Supplier may treat the Customer’s breach of any Microsoft Customer Agreement as a breach of this Agreement.

3.4 The Customer authorises the Supplier to:

3.4.1 be given Indirect Reseller access to its Microsoft tenant (including Granular Delegated Administration (GDAP) as authorised by the Customer) and will provide this access prior to or immediately after commencement of this Agreement by following the instructions provided by the Supplier.

3.4.2 submit a claim to Microsoft either directly or indirectly in relation to services provided by the Supplier under this agreement, and to fully support the claims process including acceptance of any related claim.

3.5 The Customer authorises the Microsoft Indirect Provider to be given Indirect Reseller access to its Microsoft tenant and will provide this access prior to or immediately after commencement of this Agreement by following the instructions provided by the Supplier.

3.6 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software Licence is being kept or used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

3.7 The Customer accepts responsibility for the selection of the Software Licences to achieve the intended results and acknowledges that the Software Licences have not been developed to meet the individual requirements of the Customer.

3.8 The Customer acknowledges that the Software Licences are licensed pursuant to the Microsoft Customer Agreement and as such the Supplier gives no warranties as to the Software Licences including in relation to fitness for purpose, quality, or availability at the end of the Term Period or each Subsequent Term. All conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties, or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

3.9 Software Licences and any applicable promotions may only be available for the Term Period or Subsequent Term Period, as applicable, after which time they may be withdrawn by Microsoft. If a Software Licence or applicable promotion is not available at the end of the Term Period or Subsequent Term Period, the Customer may select an alternative Software Licence accordingly. The Supplier shall have no liability in relation to any such withdrawn Software Licences or price increases relating to alternative Software Licences.

3.10 Subject to any additional requirements of the Supplier, including the payment of any increased Price, the Customer may request an increase in the number of Software Licences ordered from the Supplier at any time during the term of this Agreement.

3.11 The Customer shall not reduce the number of Software Licences ordered from the Supplier unless such reduction is notified to the Supplier 7 days prior to expiry of the Initial Term or any Subsequent Term. Any purported reduction in the number of Software Licences which is not confirmed by the Supplier in a Software Licence Amendment Confirmation and is not in accordance with this clause shall not be effective and the Customer shall continue to be liable for the fees as though no reduction has taken place.

4. Price and Payment

4.1 The Customer shall pay to the Supplier the Price specified in the Software Licence Order Form or Software Licence Amendment Confirmation as the case may be.

4.2 The Customer shall pay each invoice submitted by the Supplier:

4.2.1 within 30 days of the date of the invoice, unless otherwise stated on the invoice; and

4.2.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, or by Direct Debit, and time for payment shall be of the essence of the Agreement.

4.3 If the Customer fails to make a payment due to the Supplier under the Agreement by the due date, then, without limiting the Supplier’s remedies under the Agreement, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 4.3 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

4.4 The Supplier may suspend the Software Licences with immediate effect if any outstanding invoice(s), relating to any products or services supplied by the Supplier to the Customer, whether pursuant to this Agreement or otherwise, becomes overdue or if any Direct Debit mandate is cancelled without alternative payment being arranged.

4.5 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

4.6 All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

4.7 Prices are fixed for the Term Period following which the prevailing prices will apply to the Software Licences and will be fixed for the Subsequent Term Period.

5. Limits of liability

5.1 Except as expressly stated in clause5.2:

5.1.1 the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

5.1.1.1 indirect, consequential or special damages even if the Supplier was aware of the circumstances in which such special damage could arise;

5.1.1.2 loss of revenue, income, profits or anticipated savings;

5.1.1.3 loss of business, contract or opportunity;

5.1.1.4 loss of goodwill; or

5.1.1.5 loss or corruption of data, database, or software.

5.1.2 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed the total amount paid by the Customer to the Supplier; and

5.1.3 the Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances other than in accordance with the express terms of the Agreement.

5.2 The exclusions in clause 5.1 shall apply to the fullest extent permissible by law, but the Supplier does not exclude liability for:

5.2.1 death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;

5.2.2 fraud or fraudulent misrepresentation; or

5.2.3 any other liability which may not be excluded by law.

5.3 All dates supplied by the Supplier for the delivery of the Software Licences shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

6. Intellectual property rights

6.1 The Customer acknowledges that all Intellectual Property Rights in the Software Licences vests as set out in the Microsoft Customer Agreement and the Customer shall have no rights in or to the Software Licences other than the right to use it in accordance with the terms of this Agreement, which incorporates the Microsoft Customer Agreement.

7. Data protection

7.1 The processing of data under or in relation to this Agreement will be in accordance with the Supplier’s Data Protection Policy which is available at https://www.strategy365.co.uk/data-protection-policy.

8. Termination

8.1 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:

8.1.1 the Customer fails to pay any amount due under this Agreement on the due date for payment;

8.1.2 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

8.1.3 the Customer ‘s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or

8.1.4 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.

8.2 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

8.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

8.4 On termination for any reason:

8.4.1 all rights granted to the Customer under this Agreement shall cease;

8.4.2 the Supplier may suspend the Software Licences with immediate effect;

8.4.3 the Customer shall cease all activities authorised by this Agreement;

8.4.4 the Supplier shall raise a final invoice for any sums due to the Supplier under this Agreement and this shall include any fees relating to the remainder of any Term Period(s) for all Subscriptions, and the Customer shall immediately pay such final invoice to the Supplier; and

8.4.5 the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software Licences then in its possession, custody, or control and, in the case of destruction, certify to the Supplier that it has done so.

8.5 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, shall remain in effect following termination of the Agreement.

9. General

9.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

9.2 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

9.3 This Agreement and the documents annexed as appendices to this Agreement, including the Microsoft Customer Agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

9.4 The Supplier has the right to vary the Terms and Conditions from time to time to make non-material changes without giving any notice. An up-to-date version of the Terms and Conditions will be available at https://www.strategy365.co.uk/software-licence-agreement-terms/.

9.5 The Supplier has the right to vary the Terms and Conditions from time to time to make material changes on giving the Customer at least 14 days’ notice.

9.6 If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

9.7 If any provision or part-provision of this Agreement is deemed deleted under clause 9.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

9.8 Save as expressly provided within this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

9.9 The Supplier shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the Supplier shall be entitled to a reasonable extension of the time for performing such obligations.

9.10 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid recorded or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

9.11 Any notice shall be deemed to have been received if delivered by hand, at the time the notice is left at the proper address, if sent by recorded post or other next working day delivery service, upon receipt as notified by the mail carrier.

9.12 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

9.13 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

9.14 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

This Agreement has been entered into on the date stated at the beginning of it.

By signing this Agreement, the Customer confirms:

(a) Its agreement to these Terms & Conditions.

(b) Authorisation for the signatory below to enter into this Agreement on behalf of the Customer.