The following standard terms and conditions apply for all licenses granted by dcs plus unless otherwise agreed in writing and form an integral part of the dcs plus Software License and Maintenance Agreement (“License Terms”).
1.1 The following definitions shall apply:
Affiliate: includes, in relation to either Party, each and any subsidiary or holding company of that Party and each and any subsidiary of a holding company of that Party.
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, 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.
1.2 Further, all definitions set out in the dcs plus Software License and Maintenance Agreement (“Agreement”) shall apply.
2.1 dcs plus shall install the Software on a server dedicated by the Customer within thirty (30) days after payment of the Delivery Fee by the Customer.
2.2 The Customer shall be deemed to have accepted the Software once the Customer has commenced operational use of the Software.
2.3 Scope of use of the Software:
Customer may not use the Software other than in object code form for its business purposes in the travel industry without the prior written consent of dcs plus, and Customer acknowledges that additional Fees may be payable on any change of use approved by dcs plus.
Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
2.4 The Customer may not use any information derived from the Software and/or provided by dcs plus to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The Customer shall not allow the Software to become the subject of any charge, lien or encumbrance without the prior written consent of dcs plus.
2.6 dcs plus may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the License Terms and the Agreement, provided it gives written notice to Customer.
2.7 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
2.8 The Customer shall:
Ensure that the Software is installed on designated equipment only;
Notify dcs plus as soon as it becomes aware of any unauthorized use of the Software by any third party.
2.9 The Customer shall permit dcs plus electronic access at all times to the server on which the Software runs.
3.1. Each Party shall, during the term of the Agreement and thereafter for 3 years, keep confidential, and shall not use for its own purposes (other than implementation of the License Terms and the Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority), any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such Party from the other Party and which relates to the other Party or any of its Affiliates, unless that information is public knowledge or already known to such Party at the time of disclosure, or subsequently becomes public knowledge other than by breach of the License, or subsequently comes lawfully into the possession of such Party from a third party. Each Party shall use its reasonable endeavours to prevent the unauthorized disclosure of any such information.
4.1. dcs plus warrants that the Software will operate substantially in accordance with its specifications for the period that Customer pays the License, Maintenance and Support Fee (“Warranty Period “).
If, within the Warranty Period, Customer notifies dcs plus in writing of any defect or fault in the Software in consequence of which it fails to operate substantially in accordance with its specifications, and such defect or fault does not result from Customer, or anyone acting with the authority of Customer, having amended the Software or used it outside the terms of the Licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by dcs plus, or it has not been loaded onto dcs plus specified or suitably configured equipment, dcs plus shall, at dcs plus's option, do one of the following:
Repair the Software;
Terminate this Licence immediately by notice in writing to Customer and refund any of the Fees paid by Customer as at the date of termination (less a reasonable sum in respect of Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
Provided Customer provides all the information that may be necessary to assist dcs plus in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable dcs plus to re-create the defect or fault.
4.2. dcs plus does not warrant that the use of the Software will be uninterrupted or error-free.
The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of Customer.
4.3. All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the License Terms or any collateral contract 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.
5. Limits of liability
5.1.Under no circumstances will dcs plus be liable for any consequential, special, indirect, incidental or punitive damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, loss of data or other such pecuniary loss) arising out of or related to the use or inability to use the Software, even if dcs plus has been advised of the possibility of such damages.
5.2 dcs plus’s liability shall under no circumstances exceed the monthly Fee payable by Customer under the Agreement in each individual case of liability and shall not exceed in the aggregate an amount equal to the value of three months Fees payable by Customer under the Agreement for all cases of liability.
6.1 The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to dcs plus or the relevant third-party owners (as the case may be), and Customer shall have no rights in or to the Software other than the right to use it in accordance with the License Terms and the Agreement.
6.2 dcs plus undertakes at its own expense to defend Customer or, at its option, settle any claim or action brought against Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the License Terms infringes the Intellectual Property Rights of a third party (“Claim“) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 6.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by Customer other than in accordance with the License Terms, use of the Software in combination with any hardware or (third-party) software not supplied or specified by dcs plus, if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
6.3 If any third party makes a Claim, or notifies an intention to make a Claim against Customer, dcs plus's obligations under clause 6.2 are conditional on Customer:
As soon as reasonably practicable, giving written notice of the Claim to dcs plus, specifying the nature of the Claim in reasonable detail;
Not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of dcs plus (such consent not to be unreasonably conditioned, withheld or delayed);
Giving dcs plus and its professional advisers access at reasonable times (on reasonable prior notice) to its servers within the power or control of Customer, so as to enable dcs plus and its professional advisers to examine them and to take copies (at dcs plus's expense) for the purpose of assessing the Claim; and
Subject to dcs plus providing security to Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as dcs plus may reasonably request to avoid, dispute, compromise or defend the Claim.
6.4 If any Claim is made, or in dcs plus's reasonable opinion is likely to be made, against Customer, dcs plus may at its sole option and expense:
Procure for Customer the right to continue to use the Software (or any part thereof) in accordance with the License Terms;
Modify the Software so that it ceases to be infringing;
Replace the Software with non-infringing software; or
Terminate the License immediately by notice in writing to Customer and refund any of the Fees paid by Customer as at the date of termination (less a reasonable sum in respect of Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
If dcs plus modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 4.1 and Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of the License Terms been references to the date on which such modification or replacement was made.
6.5 This clause 6 constitutes Customer's exclusive remedies and dcs plus's only liability in respect of Claims. For the avoidance of doubt, this clause 6 is subject to clause 5.
7.1 Unless otherwise explicitly set out in the Agreement, a termination for convenience shall be excluded.
7.2 The Agreement, including the license granted hereunder, may be terminated by either Party immediately upon written notice to the other party (i) in the event of a breach of the Agreement by the other Party which remains uncured for a period of fourteen (14) days after written notice of such breach is provided to the breaching party or (ii) in the event the other Party makes an assignment for the benefit of creditors, files a voluntary bankruptcy petition, acquiesces to any involuntary bankruptcy petition, is adjudicated bankrupt, or ceases to do business.
7.3 Upon the expiration or termination of the Agreement, Customer shall immediately cease all use of the Software and other confidential information of dcs plus, and shall, at dcs plus’s option, delete and/or return all such items to dcs plus.
8.1 No failure or delay by a Party to exercise any right or remedy provided under the Agreement and/or License Terms 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.
9.1 The Agreement and its Appendix 1 as well as the dcs plus Standard Maintenance and Support Services Terms as these are made available to the Customer on the dcs plus Website represent 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. Nothing in the License Terms and the Agreement shall operate to limit or exclude any liability for fraudulent misrepresentation.
10.1 No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).
11.1 If any provision or part-provision of the Agreement and/or License Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable or be treated as deleted from the remaining provisions, which will continue to be valid. Parties will use reasonable efforts to replace that deleted provision with a valid replacement provision.
12.1 dcs plus and any of its Affiliates may enforce the License Terms and the Agreement subject to and in accordance with this clause 12 and the Agreement.
12.2 It is agreed that it is intended to confer a benefit on dcs plus and its Affiliates by making the exclusions and limitations of liability available to them in accordance with the Agreement, provided that the rights of such Affiliates under the Agreement shall only be enforceable solely by the Affiliates against a Customer and dcs plus will owe no duty to any affiliate to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit.
13.1 Nothing in the Agreement and/or License Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of any other Party.
13.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
Neither Party shall be in breach of the Agreement and/or License Terms nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement and/or License Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six (6) weeks, the Party not affected may terminate the Agreement by giving 14 (fourteen) days written notice to the affected Party.