Terms and Conditions

JOINERYSOFT LIMITED

TERMS OF BUSINESS AND SOFTWARE USE

1. Interpretation

In these Terms, unless the context otherwise requires, the following words and expressions shall have the meanings given below:

"Acceptance Date" means the date on which the Licensee accepts or is deemed to have accepted the Software in accordance with paragraph 7;

"Additional Software" means software, such as Cross-sections (3D features), Arches (non-rectangular sections), Bay Windows, CNC (machine) Links, CE or U value related procedures, Building Regulations, External Software Links, Excel Export and Batching, which are licensed by JS for use by the Licensee during any Maintenance Services Period. This includes, but is not limited to, access to the JMS setup wizard currently on http://www.jms-setup.co.uk;

"Contract" means the contract made between JS and the Licensee for the licensing of Software and the provision of Services; which shall incorporate and be subject to the Terms;

"Dongle" means the physical security device supplied by JS enabling the Licensee to use the Software on Licensee Systems;

"Field Dongle" means a Dongle supplied by JS enabling the Licensee to use the Software on Licensee Systems while he or an employee is working outside of the Premises;

"Initial Licence Fee" means the sum of the initial fees payable by the Licensee for its licence to use Joinery and Control Modules and/or Machine Specific Software;

"invoice" means any invoice submitted to the Licensee setting out details of, and prices for, the Software, Dongles, Manuals and Services agreed to be provided by JS to the Licensee;

"Joinery and Control Modules" means JMS software modules:

a) used in the design of particular joinery products, including casement and sliding sash windows, doors and doorframes, screens, stairs, gates or bills of materials; and

b) the JMS-Control Module and the JMS-Machine Output Control Module,

and which are agreed to be supplied by JS to the Licensee under the Contract;

"JS" means Joinerysoft Limited of 21a, Stuart House, Cromwell Business Park, Chipping Norton, Oxfordshire OX5 5SR, or its successors in interest;

"Licensee" means the person whose order for Software and Services is accepted by JS, and (subject to paragraph 18 herein) his successors in interest;

“Licensee Systems” includes Licensee’s own computer hardware, any network server supplied by JS or any third party, or any hosted computer functionality provided by a third party service provider facilitating Licensee’s use of the Software;

"Machine Specific Software" means any software used for enabling output of data to CNC machines identified from time to time on the JS website, and agreed to be supplied by JS to the Licensee under the Contract;

"Maintenance Services" means services of the kind described in paragraph 8.3. which will be provided by JS to the Licensee during the applicable Maintenance Services Period identified in any applicable invoice or that are otherwise agreed in writing by the parties;

"Maintenance Services Period" means, initially, a 12 month period from invoice date of initial licence fee, and subsequently any 12 month period applicable to continuation of the Maintenance Services;

"Manual" means the technical manual, in written or electronic form, supplied with the Software setting out its facilities and functions and instructions for its operation including any updates in respect of any New Release or otherwise;

"Maximum Number of Users" means the number of simultaneous users of the Software as agreed by the parties under the Contract;

“Network Monitoring” means, services of the kind described in paragraph 8.4. which will be provided by JS to the Licensee during the applicable Maintenance Services Period identified in any applicable invoice, and agreed to be supplied by JS to the Licensee under the Contract;

“Network Server Agreement Terms” means the terms of use of any network server provided by JS to Licensee, set out in Schedule A to these Terms;

"New Release" means any release of any Software issued from time to time by JS pursuant to paragraph 8 in order to cure errors or increase or improve functionality or performance, but shall exclude:

a) any new Joinery and Control Module or Machine Specific Software not included within the initial package of Software licensed under the Contract; and

b) any new version of a Joinery and Control Module or of Machine Specific Software with substantially more or different functionality or performance qualities and which is issued by JS as a replacement for a previous version under a version number in which the first digit is higher than the first digit of the number of the previous version;

"parties" means JS and the Licensee;

"Premises" means the address for installation of the Software as agreed between JS and the Licensee;

"Services" means:

a) any installation and training services as described in paragraph 8 agreed to be provided by JS to the Licensee under the Contract or that are subsequently agreed by the parties in writing;

b) support services during the Maintenance Services Period as described in paragraph 8.1; and

c) Maintenance Services, if and for so long as the Licensee pays for the same;

d) Network Monitoring during the Maintenance Services Period as described in paragraph 8.4., if and for so long as the Licensee pays for the same;

e) Dongle Insurance, if and for so long as the Licensee pays for the same;

"Software" means the Joinery and Control Modules, Machine Specific Software and agreed to be supplied by JS to the Licensee under the Contract, the Additional Software and any New Releases of any of the same issued by JS to the Licensee; and

"Terms" means the standard terms of business set out in this document, as varied from time to time under paragraph 17, and includes any special terms agreed in writing by the parties.

“Upgrade Software” means the additional Joinery and Control Modules and Machine Specific Software agreed to be supplied by JS to the Licensee under the Contract, the Additional Software and any New Releases of any of the same issued by JS to the Licensee, subsequent to the Initial Licence Fee, this includes but is not limited to additional JMS modules or JMS-Pro;

“Upgrade Fee” means the sum of the fees payable by the Licensee for its licence to use additional Joinery and Control Modules and/or Machine Specific Software not purchased in the Initial Licence Fee.

1. Formation of Contract

2.1. The issue by JS of a quotation or pro forma invoice shall be deemed to be an offer open for acceptance by the Licensee within 15 days of the date of receipt.

2.2. The Licensee shall be deemed to have accepted the offer, and the Contract shall be formed and become binding on JS and the Licensee, on the first to occur of the following events:

2.2.1. the Licensee signs and delivers a formal Acceptance of Order to JS;

2.2.2. the Licensee delivers a cheque, or transfers money, to JS for any part of the Initial Licence Fee under the Contract; or

2.2.3. a date is agreed for the installation of the Software at the Premises.

2.2.4. the licensee understands and accepts that Joinerysoft will collect usage data from the licensee’s JMS database to aid development of JMS.

1. Grant of Licence and Provision of Services

3.1. In consideration of the payment of the Initial Licence Fee by the Licensee and other amounts specified on the invoice, and subject to the Terms, JS grants to the Licensee a non-exclusive, non-transferable licence to install the Software in object code form on the Licensee Systems and to use the same for the period specified in paragraph 4 but only:

3.1.1. for processing joinery data for its own business purposes;

3.1.2. at the Premises or, in a case where Field Dongles are supplied, also at any other location at which principals or employees of the Licensee are currently working; and

3.1.3. for use by up to the Maximum Number of Users.

3.2. For the same consideration, JS shall:

3.2.1. hire to the Licensee for the period specified in paragraph 4 a Dongle (and any agreed Field Dongles) as described on the applicable invoice to enable the Software to operate on the Licensee Systems subject to the limitations described in paragraph 3.1 (or as subsequently agreed in writing by the parties); and

3.2.2. provide the training service specified on the invoice; and

3.2.3. provide the support services described in paragraph 8 during the Maintenance Services Period.

3.3. In consideration of the payment of the maintenance and support fees identified on the invoice, and further fees for subsequent periods, JS shall provide the Licensee with the Maintenance Services for the period or periods described in paragraph 4.

3.4. In consideration of the payment of the Network Monitoring fees identified on the invoice, and further fees for subsequent periods, JS shall provide the Licensee with the Network Monitoring services for the period or periods described in paragraph 4.

3.5. Licensee acknowledges that all licence or Maintenance Service or Network Monitoring fees, where paid on a monthly or other agreed instalment basis, remain an enforceable payment obligation for the entire 12 months or any other period identified in the Contract.

1. Duration of Licences and Services

4.1. The Licences granted under paragraph 3.1 in respect of Joinery and Control Modules shall continue in perpetuity subject only to paragraph 14.

4.2. The Licences granted under paragraph 3.1 in respect of Additional Software shall continue in force during the Maintenance Services Period and thereafter for so long as the Licensee takes and duly pays for Maintenance Services in respect of the Joinery and Control Modules.

4.3. The Licences granted under paragraph 3.1 in respect of Machine Specific Software shall continue in force during the Maintenance Services Period and thereafter for so long as the Licensee takes and duly pays for Maintenance Services in respect of the Machine Specific Software concerned.

4.4. Any Maintenance Services purchased by the Licensee shall commence, for an initial 12 month period, from invoice date of initial licence fee; and shall then continue for additional periods of 12 months provided the Licensee has prepaid the maintenance and support fees specified on the invoice for that period.

4.5. Any Network Monitoring purchased by the Licensee shall commence upon initial payment and continue in line with the Maintenance Services Period, or as indicated by the invoice; and shall then continue for additional periods of 12 months, in conjunction with the Maintenance Services Period, provided the Licensee has prepaid the Network Monitoring fees specified on the invoice for that period.

1. Delivery

5.1. JS shall use all reasonable endeavours to deliver the Dongle and the Manual to the Premises and to install (or enable the Licensee to install) the object code version of the Software on the Licensee Systems on the date and at the time agreed between JS and the Licensee. JS shall not be liable for any delay in delivery or performance howsoever arising.

5.2. Risk in Dongle and Manual shall pass to the Licensee on delivery to the Premises or, if the Manual or other technical materials are published on the JS website, on such publication. In the case of loss of the Dongle, JS will replace the same at its then prevailing charges. In the case of damage to the Dongle, the damaged Dongle will be returned to JS and Licensee shall pay JS’ reasonable charges for repair. The Licensee acknowledges that he has been advised to take out insurance to cover the risk of JS’s currently prevailing charges (example current selling price of modules purchased).

5.3. The Licensee shall take all necessary steps to assist JS to install the Software on the Licensee Systems on the agreed date and shall ensure that users are available for training on the agreed dates. The Licensee shall take reasonable precautions to ensure the health and safety of JS’ employees while at the Premises.

5.4. If JS supplies Licensee with a network server in connection with Licensee’s use of the Software, that network server shall be subject to the Network Server Agreement Conditions. Regardless of whether Licensee acquires a network server from JS, Licensee must acquire and activate a properly configured network server where Licensee intends more than one of its personnel to have access to the Software at the same or overlapping times.

1. The Dongle

6.1. In cases where the Initial Licence Fee is payable by instalments, a "time-out" Dongle will be supplied with the Software. The Licensee acknowledges he is aware that, if an instalment of the Initial Licence Fee is not paid when due, the Licensee’s right to use the Software will be suspended by means of the Dongle until payment in full of all monies due to JS. The Licensee shall not thereby become entitled to any refund or other reduction in monies otherwise payable to JS. When payment has been made in full, Licensee’s Dongle will be modified by JS to operate for the full duration of the Software licence granted pursuant to these Terms.

6.2. In cases where the Software is leased, a "time-out" Dongle will also be supplied and the Licensee’s right to use the Software will be terminated by means of the Dongle after expiry of the lease. The Licensee acknowledges he is aware that, if any rent or other amount due to JS is not duly paid, the Licensee’s right to use the Software will be suspended by means of the Dongle until payment in full of all monies due to JS. The Licensee shall not thereby become entitled to any refund or other reduction in monies otherwise payable to JS.

6.3. The Licensee further acknowledges that, if he ceases to take and duly pay for Maintenance Services in respect of the Joinery and Control Modules, the time-unlimited Dongle will deny the Licensee the use of the Additional Software and New Releases. The Licensee shall not thereby become entitled to any refund or other reduction in monies otherwise payable to JS.

6.4. The Licensee further acknowledges that, if he ceases to take and duly pay for Maintenance Services in respect of Machine Specific Software, the time-unlimited Dongle will deny the Licensee the use of that software. The Licensee shall not thereby become entitled to any refund or other reduction in monies otherwise payable to JS.

6.5. The Dongle shall remain the property of JS, but risk of loss of the Dongle passes to the Licensee on delivery to it in accordance with paragraph 5.

6.6. Where the Licensee takes and pays for JS Dongle insurance the Licensee accepts that the Dongle will remain as a time out Dongle during the insurance period. If the Licensee subsequently chooses not to take JS Dongle insurance and has paid for the software in full then the Licensee’s Dongle will be modified by JS to operate for the full duration of the Software licence granted pursuant to these Terms. The Licensee accepts that an excess fee applies with JS dongle insurance, at the then prevailing rate.

6.7. In cases where the Upgrade Fee, or Maintenance Services is payable in instalments the Licensee accepts that the Dongle will remain or revert to a "time-out" Dongle. The Licensee acknowledges he is aware that, if an instalment of the Upgrade Fee or Maintenance Services is not paid when due, the Licensee’s right to use the Software will be suspended by means of the Dongle until payment in full of all monies due to JS. The Licensee shall not thereby become entitled to any refund or other reduction in monies otherwise payable to JS. When payment has been made in full, Licensee’s Dongle will be modified by JS to operate for the full duration of the Software licence granted pursuant to these Terms.

6.8. Where the Licensee takes and pays for JS Network Monitoring the Licensee accepts that the Dongle will remain or revert to a time out Dongle during the Maintenance Services Period. If the Licensee subsequently chooses not to take JS Network Monitoring and has paid for the software in full then the Licensee’s Dongle will be modified by JS to operate for the full duration of the Software licence granted pursuant to these Terms.

1. Installation and Acceptance of Software

7.1. If provided for on the invoice or subsequently agreed in writing by the parties, JS shall install the Software and provide initial training at the Premises (or on a remote and on-line basis if agreed by the parties) in the use and operation of the Software on the days and for the number of people specified on the invoice or otherwise as agreed between the parties.

7.2. If the Licensee elects to install the Software itself, he may do so at his own risk; if the Licensee then requests any support from JS which JS is prepared to supply, that support shall be charged for at JS’ then prevailing rates.

7.3. The Licensee shall be deemed to have accepted the Software and that installation has been satisfactorily completed:

7.3.1. 48 hours after completion of the installation provided by JS under paragraph 7.1; or

7.3.2. 48 hours after taking delivery of the Software in case the Licensee elects to install the Software itself, unless the Licensee notifies JS in writing within that period that it is not satisfied with the Software and provides reasons in writing for its dissatisfaction. The parties will then agree terms of resolution, which may include JS personnel attending at Licensee’s premises to ensure removal of the Software and return of all related materials.

7.4. The Licensee shall assist JS to provide mutually convenient dates for installation and training, within a reasonable period and ensure that a person who is competent to operate the Licensee Systems and any network used by the Licensee is present and available to help JS throughout the installation or any removal process.

1. Support and Maintenance and Network Monitoring

8.1. The Licensee is recommended and requested to study the Online Manual and “Online Help notes”, but JS shall:

8.1.1. during the Maintenance Services Period provide reasonable telephone helpdesk support from JS’s premises and respond to emails sent by the Licensee reasonably requesting advice, in each case free of charge, subject to the remaining provisions of this paragraph 8; and

8.1.2. until further notice, permit the Licensee to access free of charge any pages on JS’ website that contain advice or assistance for users of the Software concerned.

8.2. Support and Network Monitoring under paragraph 8.1 shall be available between the hours of 9 am and 5 pm (GMT), Mondays to Fridays (excluding bank and other public holidays), and JS shall use all reasonable endeavours to respond within 48 hours of being contacted. Support shall not include training in the use and operation of any Licensee Systems or other equipment on which the Software is installed or the network on which it is used.

8.3. If, and for so long as, the Licensee purchases Maintenance Services, JS shall:

8.3.1. allow the Licensee to use the Additional Software;

8.3.2. continue to provide the telephone and email support service described in paragraphs 8.1 and 8.2;

8.3.3. cure errors in the Software or, in its sole discretion, increase functionality or performance, through the issue of New Releases; and

8.3.4. in its sole discretion, have its personnel visit Licensee’s Premises to assist in the diagnosis or fixing of faults, including at then prevailing JS charges.

8.4. If, and for so long as, the Licensee purchases Network Monitoring, JS shall, pursuant to 8.5:

8.4.1. monitor backups of the Licensee software, on the Licensee Systems. The Licensee will be responsible for ensuring that a copy of the backup is stored in a safe place.

8.4.2. perform software upgrades on the Licensee Systems.

8.4.3. provide Dongle Insurance for the Maintenance Services Period,

8.4.4. cure errors in the Software or, in its sole discretion, increase functionality or performance, through the issue of New Releases; and

8.4.5. in its sole discretion, have its personnel visit Licensee’s Premises to assist in the diagnosis or fixing of faults, including at then prevailing JS charges.

8.5. In order for JS to provide Network Monitoring Services the Licensee shall ensure that the Licensee Systems are left powered on at all times and provide remote access to JS staff.

8.6. The Licensee accepts that where Network Monitoring Services are not purchased, the Licensee will be liable for any network support, chargeable at JS then prevailing rate, not covered by the standard Maintenance Services.

8.7. JS reserves the right, after first warning the Licensee in writing, to charge the Licensee additional sums for maintenance and support services if, in its reasonable opinion, the number of requests from the Licensee for support is excessive.

8.8. JS reserves the right to charge reasonable additional fees in case a service call is made, and the problem has arisen from:

8.8.1. improper use of the Software, the Dongle, the Manual, the Licensee Systems on which it is installed or the network over which it is run;

8.8.2. any defect in the Licensee Systems or network or in other software used on the same equipment or network;

8.8.3. any alteration or modification made to the Software, the Dongle or the Manual by any person other than JS or any adverse result arising from the interaction of the Software with any other software used by the Licensee;

8.8.4. the failure by the Licensee to use New Releases or to implement recommendations for the use of the Software contained in the Manual or otherwise communicated to the Licensee by JS in writing; or

8.8.5. use of the Software for a purpose for which it was not designed.

1. The Initial License Fee and Other Payments

9.1. The Initial Licence Fee and all other sums due from the Licensee to JS will be set out in the invoice or shall otherwise be agreed in writing by the parties. Unless otherwise agreed in writing by the parties, the Initial Licence Fee and any agreed fees for installation services, training and for Maintenance Services during the first Maintenance Services Period shall be paid in full prior to delivery (or JS enabling delivery) of the Software.

9.1.1. The Upgrade Fee and all other sums due from the Licensee to JS will be set out in the invoice or shall otherwise be agreed in writing by the parties. Unless otherwise agreed in writing by the parties, the Upgrade Fee and any agreed fees for installation services, training and for Network Monitoring during the first Network Monitoring Period shall be paid in full prior to delivery (or JS enabling delivery) of the software.

9.2. JS reserves the right to charge a handling fee of 50% of invoice value if the Licensee cancels the order after acceptance but before installation of the Software, or other service.

9.2.1. In addition to 9.2. where JS supplies a network server to the Licensee with the software preinstalled, JS reserves the right to charge for the cost of the server and also for its time in installing the software, at the current prevailing rates, if the Licensee cancels the order after acceptance but before delivery of the network server.

9.3. Any charges payable by the Licensee for other Services shall be payable to JS by the Licensee in advance of any commencement of such Services, and otherwise in accordance with the terms of the applicable invoice and any other applicable Contract terms.

9.4. The Licensee acknowledges that any cancellation or change of training dates, once confirmed, either by email or by post, will incur a cancellation fee payable to JS as per the scale below:

From training date, cancellation within:

Cancellation Fee as % of Training Fee

29+ days

0%

28 days - 22 days

25%

21 days - 15 days

50%

14 days or less

80%

9.4.1. Further to paragraph 9.4., in addition to the cancellation fee for cancellation or change of training dates, the Licensee accepts that the Licensee will be liable to pay JS any costs already incurred by JS, pursuant to the cancelled training dates, such as hotels, ferries and flights already booked. If the training fee is not itemised on the invoice, then the training fee will be calculated at JS prevailing rate.

9.5. If the Initial Licence Fee or any other charges due are not paid by the due date, then, without prejudice to any other right or remedy it may have, JS reserves the right to charge interest on the unpaid amount (both before and after any judgment) at the rate of 2.5% above the base rate from time to time of Lloyds Bank Plc from the date that payment is due to the date that it is duly received in cleared funds.

9.6. The Licensee accepts that where Maintenance Services or Network Monitoring Services are not purchased, then the Licensee will be liable for any support provided by JS including then prevailing JS charges.

1. Property Rights and Confidentiality

10.1. The Licensee acknowledges that he shall not become the owner of, or entitled to any copyright or other intellectual property rights in, the Software, the Dongles or the Manual, all of which, and any copies of which, are and shall remain the exclusive property of JS subject only to the limited rights granted under the Terms.

10.2. The Licensee shall not:

10.2.1. except as provided in paragraph 11, make back-up copies of the Software or the Manual;

10.2.2. except only for the purposes expressly permitted by the Copyright, Designs and Patents Act 1988, copy, adapt or reverse compile the whole or any part of the Software, any coding within the Dongle or the Manual;

10.2.3. assign, transfer, sell, lease, rent or otherwise deal in the Software, the Dongle or the Manual or use, or allow the use of, the same by or on behalf of any other company, person or partnership; or

10.2.4. remove or alter any copyright or other proprietary notice on any eye-readable or electronic version of any of the Software, the Dongle or the Manual.

10.3. All information contained in the Software, the Dongle and the Manual is and shall be kept confidential by the Licensee, and shall not be disclosed by the Licensee to any third party without the prior written consent of JS.

10.4. The Licensee shall make those of his employees who have access to the Software, the Dongles and the Manual aware of the provisions of this paragraph 10, and shall use his best endeavours to ensure that they comply with the Terms.

10.5. The Licensee grants JS a licence to retain and use any information provided by the Licensee in the performance of the Contract or use of the Software. In the event of termination of the Contract pursuant to paragraph 14, JS shall acquire full ownership of all Licensee information input into the following Software functions: JMS Factory Production Control; JMS Purchase Control; JMS Directory (being a functionality that permits suppliers to market their products to Software users); and JMS Machine Output; and Licensee shall have no access to such information by means of the Software following such termination.

1. Copying and Back up

11.1. The Licensee shall be entitled to make back-up copies of the Software or the Manual for security purposes only. Any such copies shall in all respects be subject to the Terms. The Licensee shall not make or attempt to make, and shall not modify, a Dongle or attempt to make any device with substantially equivalent functionality.

11.2. The Licensee shall be solely responsible for ensuring that the user data is backed up on a regular basis so that he is able to recover information available in the Software or in files generated by the use of the Software.

11.3. The Licensee shall be solely responsible for ensuring that the backed up user data, mentioned in paragraph 11.2. is stored in a separate location to the Software and in a safe environment.

1. Warranties and Undertakings

12.1. JS undertakes that, if the Software does not operate in the manner described in the Manual, it will, during the Maintenance Services Period and for so long as the Licensee takes and duly pays for Maintenance Services, use all reasonable endeavours to correct any error or to provide a by-pass for the problem. JS does not warrant that the Software will meet the Licensee’s data processing requirements or that operation of the Software will be uninterrupted or error-free.

12.2. Subject to the exceptions set out in clause 12.3 and the limitations upon its liability in this paragraph 12, JS warrants that:

12.2.1. it has the right, power and authority to license the use of the Software and to provide the Dongle and the Manual on the Terms; and

12.2.2. it will perform the Services with reasonable care and skill.

12.3. The Licensee shall immediately give notice to JS if a third party alleges that use of the Software by the Licensee is in breach of a third party’s rights. JS will use reasonable commercial endeavours to defend the claim or to obtain a license from the third party. If it is unable to do so, JS may terminate the licence and will refund a fair proportion of moneys paid by Licensee to JS pursuant to the Contract according to the date on which the third party has rejected JS’s efforts to obtain a license. JS shall have no other liability towards the Licensee arising out of a third party claim.

12.4. JS shall have no liability towards the Licensee in respect of a defect which arises as a result of any of the circumstances described in paragraph 8.5.

12.5. The Software contains algorithms, assumptions and processes that are considered by JS in good faith to be reasonably appropriate for use in calculation of U-values of windows and doors according to current UK standards and compliance with CE marking requirements. JS does not warrant that these algorithms, assumptions or processes will always produce the correct results or that they are the most appropriate methodology for the task. Compliance of Licensee products with all applicable laws and regulations remains the sole responsibility of Licensee regardless of any use of the Software.

12.6. Subject to other sub-paragraphs of this paragraph 12, the Licensee acknowledges that the Software, the Dongle and the Manual are supplied on an "as-is" basis and that any and all other conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the Software, the Dongle and the Manual and the provision of the Services are hereby excluded to the maximum extent permitted by law.

1. Limitation of Liability

13.1. The provisions in this paragraph 13 set out JS’s entire liability to the Licensee in respect of:

13.1.1. any breach of its obligations arising under the Contract; and

13.1.2. liability for any acts or omissions of its employees, agents, sub-contractors or other representatives; and

13.1.3. any representation, statement or tortious act or omission, including negligence (but excluding any fraudulent act) arising under or in connection with the Contract,

being in each case an "Event of Default".

13.2. JS’s liability to the Licensee for:

13.2.1. death or injury resulting from its own negligence or that of any employees, agents, sub-contractors or other representatives; and

13.2.2. physical damage to tangible property sustained by the Licensee as a result of any breach of the obligations implied by, as applicable, section 2 of the Supply of Goods and Services Act 1982 or section 8 of the Supply of Goods (Implied Terms) Act 1973,

shall not be limited by the provisions of this paragraph 13.

13.3. Subject to paragraph 13.2, JS’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to:

13.3.1. £2,500 in the case of damage to the tangible property of the Licensee resulting from the negligence of JS or its employees, agents, sub-contractors or other representatives;

13.3.2. in the case of any other Event of Default, the amount of the Initial Licence Fee and other upfront payments due under any invoice or, where the Software is leased, the aggregate of the payments made up to the date of the Event of Default in respect of the Software; and

13.3.3. Licensee acknowledges its legal responsibility to take all reasonable efforts to mitigate damages, including shutting down production equipment that is miss performing.

13.4. Subject to paragraph 13.2, JS shall not, in any event, be liable to the Licensee for loss of profits, goodwill or data or any type of special, indirect or consequential loss, including economic loss, damages or legal or other costs suffered or sustained by the Licensee, including as a result of any action brought by a third party, in relation to products manufactured by the Licensee following use of the Software; including claims linked to miscalculation of U-values or CE related liabilities, and any and all losses arising out of the ordering of incorrect quantities or sizes of glass, glazing products or wood or other material; even if such loss was reasonably foreseeable or JS had been advised of the possibility of the Licensee incurring the same.

13.5. The Licensee agrees to allow JS a period of not less than 30 days following written notification by the Licensee specifying an Event of Default in which to remedy the same.

13.6. JS shall have no liability to the Licensee in respect of any Event of Default unless the Licensee shall have delivered notice of the same upon JS within three months of the date on which it became aware of the Event of Default or should reasonably have been so aware.

13.7. JS shall also have no liability to the Licensee in respect of any Event of Default that results from any act or omission by the Licensee, including the provision of incorrect or incomplete information, whether defined by this Contract or generally applicable laws or regulations.

1. Termination

14.1. Without prejudice to any further right or remedy it may have, JS may:

14.1.1. suspend provision of the Services with immediate effect on service of written notice on the Licensee if any outstanding payment remains unpaid 7 days following written notice to Licensee by JS of the payment default;

14.1.2. terminate the licences granted under this Contract, with immediate effect on service of written notice on the Licensee if any outstanding payment remains unpaid 30 days following written notice to Licensee by JS of the payment default;

14.1.3. terminate the licences granted under this Contract, with immediate effect, where the Licensee commits a breach of any of the other Terms and fails to remedy that breach (if capable of remedy) within 14 days of written notice from JS specifying the breach in question. In such notice JS may, but shall not be obliged to, suggest a remedial course of action;

14.1.4. terminate the licences granted under this Contract, with immediate effect, where the Licensee has any distress, execution or other legal process levied on or against any of his goods or property or permits any judgment against him to remain unsatisfied for 7 days;

14.1.5. terminate the licences granted under this Contract, with immediate effect, where the Licensee, in case the Licensee is a company, the company or any parent company becomes insolvent or enters into receivership, administration or liquidation;

14.1.6. terminate the licences granted under this Contract, with immediate effect, where the Licensee, in case the Licensee is an individual or it is a partnership, he or any partner becomes bankrupt or enters into any arrangements, agreement or composition with and for the benefit of his creditors; or

14.1.7 terminate the licences granted under this Contract, with immediate effect, where the Licensee ceases or notifies JS that he intends to cease carrying on his business.

14.2. In the event of termination of the licence(s) on any of the grounds identified in this paragraph 14, the Licensee shall immediately cease use of the Software and shall return the Dongle, any network server supplied by JS to Licensee, where any payment for network server remains outstanding, and all copies of the Manual to JS. The Licensee shall also delete all copies of the Software and any material copied from the Manual from Licensee Systems; and the Licensee shall permit representatives of JS to enter upon any of his business premises to either do so on his behalf or to affirm compliance with this paragraph 14.2.

14.3. Any termination of the Licences pursuant to this paragraph 14 shall not affect any accrued rights or obligations of either of the parties existing at the date of termination nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or to continue in force on or after termination.

14.4. In addition to JS’s right to terminate the licence(s) pursuant to this paragraph 14, JS shall have the right to prevent access by the Licensee to any Additional Software or other Software functionality that requires Licensee to have paid the fees for Maintenance Services for any applicable Maintenance Services Period.

14.5. The Licensee acknowledges he is aware that, if an instalment of the Initial Licence Fee, Upgrade Fee, Network Monitoring fee or Maintenance Services fee is not paid when due, the Licensee's right to use the software will be suspended by means of the Dongle until payment in full of all monies due to JS. The Licensee shall not thereby become entitled to any refund or other reduction in monies otherwise payable to JS. When payment has been made in full, the Licensee will be granted access to the software again, pursuant to these Terms.

1. Force Majeure

Notwithstanding any other provision of these Terms, neither party shall be liable for any delay in performing or failure to perform its obligations under the Contract, or be deemed to be in breach of the Contract, if the delay or failure is caused by circumstances beyond its reasonable control.

1. Invalidity

If any provision of these Terms, other than the obligation on the part of the Licensee to pay the Initial Licence Fee or other sums stated to be due to JS, shall be held to be illegal, void or unenforceable in whole or in part, that provision or part shall to that extent be deemed not to form part of this agreement and the enforceability of the remainder of these Terms shall not be affected.

1. Entire Agreement and Variations

17.1. These Terms and the Contract constitute the entire agreement between the parties in relation to its subject matter and supersede all previous agreements and arrangements in relation to the same. No variation of or addition to these Terms or the Contract shall be binding on either party unless made pursuant to paragraph 17.2 or otherwise agreed in writing by the parties.

17.2. Subject to paragraph 17.3, and only after giving notice to the Licensee, JS may change the terms under which it provides the Services at any time. A copy of the changed terms will be published on JS’ website and will be effective as of the date identified on the website.

17.3. The rights of JS under paragraph 17.2 shall not permit JS to:

17.3.1. increase the Initial Licence Fee or any other amount recorded on any invoice after acceptance of the offer or acceptance of the terms of any invoice by the Licensee; or

17.3.2. further limit the licences agreed to be granted to the Licensee in relation to the Software.

17.4. Notwithstanding any provision of this paragraph 17, or any other terms of the Contract:

17.4.1. JS may issue Software updates or additional Joinery and Control Modules or Machine Specific Software (being those identified as exclusions from New Releases) from time to time. JS will determine whether such updates, additional modules or changes to Machine Specific Software are subject to additional licence or other fees and terms, or whether they will be provided for no additional charge (and pursuant to these Terms) to Licensees who are current in their payment for Maintenance Services. Failure by a Licensee to pay for any updates subject to additional fees shall not interfere with Licensee’s use of the Software pursuant to the Contract. New Software functionality will be addressed in amended Manuals or similar operational guides published by JS on its website or within the software; and

17.4.2. JS will determine the means of distribution of the Software and performance of the Maintenance Services.

1. Assignment and Sub-licensing

The Licensee may not assign or otherwise transfer the Contract, nor any of his rights or obligations hereunder nor sub-license the use (in whole or in part) of the Software, Dongle or Manuals, without the prior written consent of JS. For the purposes of this paragraph 18, assignment, transfer or sub-licensing includes any purported grant of rights in the Software or any other rights of the Licensee under the Contract pursuant to any financing arrangement, or the sale or other transfer of control of his business, entered into by the Licensee or his successors in interest.

1. Notices and JS Root Access to Licensee Systems and Equipment

19.1. Any notice required to be given under these Terms shall be in writing, and may be given personally, or by posting it by first class prepaid post or by email, to the other party at the address and to the attention of the person(s) identified in the most recent invoice, or other last known address, and any notice given by post shall be deemed to have been received 48 hours after it was posted or, if given personally or sent by email, on delivery.

19.2. In addition, JS representatives shall have direct and immediate (“root”) access to the Licensee Systems hosting the JS software.

20. Applicable Law and Jurisdiction

These Terms and the Contract are governed by and shall be construed in accordance with the laws of England, excluding any choice of law or jurisdiction rules, and the parties irrevocably submit to the exclusive jurisdiction of the English courts in relation to any claim or matter arising there under.

21. Exclusion of Third Party Rights

The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract or these Terms, and no rights or benefits expressly or impliedly conferred by that Act shall be enforced against the parties or any other person.

SCHEDULE A

NETWORK SERVER AGREEMENT CONDITIONS

It is the responsibility of the Licensee to ensure the server is kept in a dust-free environment (as far as possible) and connected to the Licensee’s network and power.

It is the responsibility of the Licensee to ensure the Licensee uses a Surge Protector or UPS where applicable, whether provided by Joinerysoft or not, to ensure against power fluctuations which could damage the server hardware (or connect to an existing UPS if available). Please see JS website for recommended specification.

To enable the full functionality of the JMS Server and support, the licensee is required to ensure that the server remains turned on and networked 24/7. JS also requires root access to the JMS Server to provide support and monitoring services. If this conflicts with the Licensee’s Insurance requirements or Codes of Practice, please let JS know prior to installation. JS will not be liable for reduced levels of support where 24/7 access to the JMS server is not provided by the licensee for JS staff.

The JMS Server must be set up according to JS network specification and should not run or contain any other software not recommended by JS. JS reserves the right to charge reasonable additional fees in case a service call is made, and the problem has arisen from any alteration or modification of the network by any person other than JS or any adverse result arising from interaction with any other software used by the licensee.

The licensee is responsible for the cost of repair and replacement of the JMS Server after any manufacturer's warranty has expired. Where the JMS Server has been provided by JS and is within the manufacturer's warranty, if the server fails catastrophically and JS are unable to fix it remotely, the Licensee is responsible for shipping it back to JS in the original packaging (where possible) to avoid any unnecessary damage and JS will repair or replace the JMS Server according to manufacturer’s warranty. JS reserve the right to charge for any repair or replacement which occurs outside the manufacturer’s warranty (ie: issues which relate to power surges will not be covered and will incur costs)

Where provided by JS the JMS Server remains the property of JS until all payments relating to it’s purchase have been paid in full.

Joinerysoft undertakes to install the software on the JMS Server during initial installation, any additional installations due to replacement of equipment or any other reason will be charged at JS prevailing current rate.

Network Monitoring includes Dongle insurance unless the licensee notifies JS that the Dongle insurance is not required.

If a Licensee has elected not to take or pay for Network Monitoring, any network or computer support will be charged at JS prevailing current rate.

Revision (090518)

Effective from 10th May 2018

4 years maintenance deals

The standard deal is for a single user JMS system. For network systems the price will be more.

During the 4 year contract the dongle will be timed out and update periodically. If payment is not made, the dongle will expire and the full system will stop functioning.