LIQUID VOICE END USER LICENCE AGREEMENT
1. INTRODUCTION
1.1 This end user licence agreement (EULA) is a legal agreement between you (Licensee) and Liquid Voice Systems Limited (Licensor) for:
(a) the online service to be made available by the Licensor to the Licensee (Software); and
(b) any materials or other documentation made available by Licensor from time to time in support of the use of the Software (Documentation).
1.2 Regardless of whether Licensor has made the Software available to Licensee directly or via one of its authorised resellers, Licensor licenses use of the Software and Documentation to Licensee on the basis of this EULA. Licensor does not sell the Software or Documentation to Licensee. Licensor remains the owner of the Software and Documentation at all times.
1.3 By using the Software or allowing any third party to use the Software on its behalf, the Licensee will be deemed to have read, understood and unconditionally accepted the terms and conditions of this EULA.
1.4 LICENSEE SHOULD NOT COMMENCE USE OF THE SOFTWARE NOR ALLOW ANY THIRD PARTY TO COMMENCE USE OF THE SOFTWARE ON ITS BEHALF IF LICENSEE IS NOT PREPARED TO ACCEPT THE TERMS AND CONDITIONS OF THIS EULA.
2. MINIMUM SYSTEMS REQUIREMENTS AND RESTRICTIONS ON USE
2.1 The Software may only be used on equipment and systems which meet the minimum systems requirements detailed as: Windows 10 or newer to run the Liquid Voice client sound card and speaker/headphones to allow for play back audio Desktop or virtual desktop for PCI solution. (Minimum Systems Requirements). The Licensee is solely responsible for ensuring that the Minimum Systems Requirements are met and the Licensee shall ensure that at all times it is fully licenced to use any third party software as specified in the Minimum Systems Requirements and that it fully complies with the terms and conditions of all such third party software licences.
2.2 Licensee’s authorised use of the Software and Documentation is:
(a) subject to the commercial terms agreed in writing between Licensee and Licensor (or Licensor’s authorised reseller) (Commercial Terms); and
(b) limited solely to use in accordance with the terms and conditions of this EULA and for the purposes agreed in writing between Licensee and Licensor (or Licensor’s authorised reseller) subject at all times to any restrictions or limitations on use agreed in writing between Licensee and Licensor (or Licensor’s authorised reseller) (Permitted Purposes and Restrictions).
3. GRANT OF LICENCE
3.1 In consideration of Licensee agreeing to and complying with the terms of this EULA, Licensor hereby grants to Licensee a non-exclusive and non-transferable licence to access and use the Software and the Documentation for its internal business purposes only, subject to the Permitted Purposes, Restrictions and Commercial Terms. The Licensee may only make copies of the Documentation as may be reasonably required for its use in accordance with this EULA.
3.2 Except and only to the extent as expressly set out otherwise in this EULA, the Commercial Terms, the Permitted Purposes or as permitted by any applicable law, the Licensee shall not:
(a) use or attempt to use the Software for any illegal or unlawful purpose and/or for the purposes of publishing or otherwise distributing materials which are offensive, defamatory or in breach of any intellectual property rights belonging to any third party;
(b) use or attempt to use the Software in any way which disrupts, restricts or interferes with the provision of the Software by the Licensor and/or its availability to and use by other users authorised by the Licensor;
(c) access or attempt to access any part of the Software which the Licensee is not authorised to access and/or to access any data which is held on or accessible via the Software other than the Licensee Data and any data which is made publicly available by the Licensor to all users on or via the Software; and/or
(d) reverse engineer, decompile, copy, distribute, disseminate, sub-licence, modify, translate, scan and/or adapt any software or other code or script which forms part of or is accessible via the Software.
3.3 The Licensee shall:
(a) maintain in strict confidence at all times any user names, access codes or other authorisations which may be provided or allocated to it by the Licensor and/or via the Software from time to time together with any associated passwords (and, where the Licensee is responsible for setting its own password shall ensure that those are sufficiently robust in accordance with generally accepted password security recommendations in the IT industry from time to time) and shall not disclose the same to any other person;
(b) immediately inform the Licensor of any actual or suspected loss, theft, publication or disclosure of any of its user names, access codes, other authorisations or passwords for the Software and/or of any actual or suspected unauthorised access to or use of the Software using the same of which the Licensee becomes aware;
(c) supervise and control use of the Software and ensure that the Software is used by its employees, service providers and representatives (for whose acts and omissions Licensee shall be liable to Licensor for) in accordance with the terms of this EULA; and
(d) not provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than its employees or service providers without prior written consent from Licensor.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Licensee acknowledges that all intellectual property rights in the Software and the Documentation throughout the world belong to Licensor, that rights in the Software are licensed (not sold) to Licensee, and as such, the Licensee has no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this EULA.
4.2 Licensee acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
5. LICENSEE DATA
5.1 Ownership of any data provided by the Licensee which is uploaded to or processed via the Software or which is otherwise collected or generated by the Licensee as a result of its use of the Software (the Licensee Data) including any intellectual property rights in any Licensee Data shall at all times remain vested in the Licensee notwithstanding the uploading, collection or use of any such Licensee Data onto or via the Software.
5.2 The Licensee hereby grants to Licensor a non-exclusive, non-transferable, royalty free licence to use and process the Licensee Data for the purposes of providing the Licensee with access to the Software and otherwise as may be reasonably necessary to enable Licensor to discharge its obligations and exercise the rights granted to it under this EULA.
5.3 The Licensee shall ensure that any Licensee Data which it uploads, collects or uses onto or via the Software is complete, accurate, and up-to date and does not contain any virus, worm, Trojan horse or other components which may be harmful to or disrupt the Software.
5.4 Without prejudice to any of the other rights and remedies of Licensor, the Licensee acknowledges that Licensor shall not be liable for any failure or delay in complying with any of its obligations under this EULA nor for any error or omission in the provision of the Software to the extent that any such failure, delay, error or omission is caused as a result of any failure by the Licensee to comply with its obligations under Clause 5.3 and/or 5.6.
5.5 The parties acknowledge that during the performance of its obligations under this EULA, Licensor shall be required to process personal data on behalf of the Licensee as a processor. For the avoidance of any doubt, the Parties acknowledge that RingCentral is not involved in any way in the processing activities pursued by Liquid Voice on behalf of the End Customer as specified in this Agreement and shall not be regarded neither as Processor nor sub-Processor to any of the Parties. The nature and duration of the processing to be undertaken, types of personal data and categories of data subjects involved are:
(a) Nature of the processing: For the purpose of providing the Software.
(b) Duration of the processing: As described in Clause 5.7(f).
(c) Types of personal data: Name, address, email address, telephone number, employment history, job titles, business address, department etc., business and personal email addresses, business telephone/fax/mobile numbers, investments, property details, salary and income, overtime, bank details, expenditure, assets, liabilities, financial details, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning health or sex life and sexual orientation, genetic data, birth date, marital status, dependants, nationality, criminal records, maternity/paternity dates, references, biometric data where processed to uniquely identify a person.
(d) Categories of data subjects: The Licensee’s clients and relations of the Licensee’s clients.
5.6 The Licensee shall:
(a) ensure that the personal data has been collected and will be provided to Licensor in accordance with applicable data protection laws. This shall include, without limitation, providing all privacy notices to, and obtaining any necessary consents from, data subjects, which are required to be provided and obtained under applicable data protection laws to allow the Licensor to lawfully process the personal data as required and permitted under this EULA; and
(b) ensure that Licensor’s use of the personal data in accordance with this EULA shall not breach applicable data protection laws.
5.7 Licensor shall:
(a) only process the personal data in accordance with the Licensee’s written instructions from time to time, unless otherwise required by law, in which case, Licensor shall (to the extent permitted by law) inform the Licensee of that legal requirement before carrying out the processing. The Licensee hereby instructs Licensor to process the personal data to the extent necessary to provide the Software;
(b) take appropriate technical and organisational measures to ensure a level of security for the personal data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the personal data;
(c) permit the Licensee, on reasonable notice and during Working Hours only, to inspect Licensor’s premises, equipment and facilities where the Licensee Personal Data is processed to enable the Licensee to monitor compliance by Licensor with this Clause 5.7;
(d) at the Licensee’s reasonable cost, provide reasonable assistance to enable the Licensee to comply with its obligations (i) to respond to any requests from data subjects in accordance with applicable data protection laws and (ii) under Articles 32 – 36 (Security, Breach Notifications, Data Protection Impact Assessments, Prior Consultation) of the GDPR (or equivalent provisions under applicable data protection laws);
(e) without limiting the generality of Clause 5.7(d), inform the Licensee without undue delay if it becomes aware of any personal data breach affecting the Licensee’s personal data;
(f) on termination or expiry of this EULA (at the Licensee’s option and request), either return the personal data to the Licensee or destroy it PROVIDED THAT if the Licensee has failed to serve written notice on Licensor within 30 days of the termination or expiry of this EULA requesting the return or destruction of the personal data then Licensor shall be entitled at any-time thereafter without liability or the need to provide notice to the Licensee to destroy any personal data. Unless otherwise agreed by the parties in writing, if the Licensee requests for the personal data to be returned to the Licensee rather than destroyed, then this shall be at the Licensee’s cost in accordance with Licensor’s applicable price list at the date of the return of the personal data. Licensor shall not be required to return or destroy any personal data that it is required to retain post termination or expiry in order to comply with applicable laws;
(g) ensure that access to the personal data is limited to those of its employees who need access in order to meet Licensor’s obligations under this EULA and that those employees are bound by appropriate confidentiality obligations when accessing it; and
(h) make available to the Licensee all information, documentation and assistance that is reasonably necessary to enable the Licensee to verify that Licensor is in compliance with this Clause 5.7.
5.8 The Licensee authorises the Licensor to appoint sub-processors in connection with the provision of the Software provided that Licensor shall (i) notify the Licensee of any intended changes concerning the addition or replacement of sub-processors during the term of this EULA, (ii) give the Licensee the opportunity to object to such changes and (iii) impose upon any sub-processor terms equivalent to those in Clause 5.7. Licensor shall be liable for the acts and omissions of such sub-processors as if they were Licensor’s own acts and omissions.
5.9 Without prejudice to and notwithstanding any other provision of the Agreement, where in connection with the performance of any services under this EULA Licensor is requested or required by the Licensee to access and/or use any data, systems and/or software of any third party (including of any customer of the reseller and/or of any third party licensor of the reseller and/or of any of its customers) then it is a condition of this agreement that prior to any such access and/or use by Licensor the Licensee has obtained and will
thereafter maintain all necessary licences, authorisations, consents and/or permissions as may be necessary to ensure that such access and/or use by Licensor is authorised and lawful and in particular, will not result in any claim or allegation that such access and/or use by Licensor infringes the intellectual property and/or any other rights of any third party.
5.10 Without prejudice to clause 5.9 the Licensee shall indemnify Licensor on demand and in full against all liabilities, costs, expenses, damages and losses suffered or incurred by Licensor arising out of, in connection with and/or as a result of any claim or allegation that any access and/or use by Licensor as envisaged under clause 5.9 infringes the intellectual property and/or any other rights of any third party.
6. LIMITED WARRANTY
6.1 Licensor warrants that the Software will conform in all material respects to the Documentation but does not warrant that the Licensee’s access to and use of the Software will be uninterrupted or error free.
6.2 If the Licensee notifies the Licensor in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Documentation and such defect or fault does not result from any failure or delay by the Licensee to comply with any of its obligations under this EULA then the Licensor shall (at its option) do one of the following as the Licensee’s sole and exclusive remedy with respect to the failure of the Software to comply with this warranty:
(a) modify or amend the Software as soon as reasonably practicable so that it does conform in all material respects to the Documentation; or
(b) refund the amount received by Licensor for the grant of the licence under this EULA,
(e) PROVIDED THAT in either case the Licensee provides all information that may be necessary to assist the Licensor in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Licensor to re-create the defect or fault in question.
6.3 The Licensor shall use reasonable endeavours to ensure that the Software is continually available for access by the Licensee at all times. Notwithstanding the foregoing sentence, the Licensor shall be entitled to temporarily suspend access to the Software as may be reasonably necessary from time to time in order to carry out maintenance and upgrade work; in the event of any actual or suspected security breach; and/or in the event of any other emergency. The Licensor shall use reasonable endeavours to provide the Licensee with as much notice of any suspension of the Software as is possible in the circumstances and to undertake any planned maintenance or upgrade work outside of the hours of 9am and 5pm during any day which is not a Saturday, Sunday or bank or other public holiday in England and Wales (Working Hours).
6.4 The Software does not include the provision of any back-up, disaster recovery or business continuity services and to the extent that any of the Licensee Data is stored or hosted by the Licensor in connection with the Software then the Licensee shall back-up such data itself at frequencies which are appropriate to enable it to recover such data with minimal impact on its business.
6.5 The Licensor shall be entitled from time to time without the consent of the Licensee to introduce new functionality to the Software; to make changes to the Software; and/or to make changes to the Minimum Systems Requirements.
7. LIMITATION OF LIABILITY
7.1 Licensee acknowledges that the Software has not been developed to meet its individual requirements and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation are suitable for its requirements.
Licensor does not seek to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; or in respect of any other matter or liability which cannot be lawfully limited or excluded. Each provision of this EULA shall be read as subject to this Clause 7.2 and no provision of this EULA is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
7.3 Subject at all times to the other provisions of this Clause 7, the maximum aggregate liability of the Licensor for all claims under this EULA howsoever arising (including under any indemnity) shall not exceed £250,000 (two hundred and fifty thousand pounds sterling) in aggregate in any Year. Year means a period of 12 (twelve) months commencing on the date of this EULA and each anniversary thereof.
7.4 Licensor shall not be liable for: loss or damage arising as a result of any events outside of its reasonable control; loss of business; loss of use; loss of profit; loss of anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; product recall costs; damage to reputation; and/or any consequential, special or indirect loss or damage in any case, regardless of whether or not Licensor was aware or had been made aware (or ought reasonably to have been aware) at the time of this EULA coming into force of the risk that such loss or damage might occur.
7.5 This EULA sets out the full extent of Licensor’s obligations and liabilities in respect of the access and use of the Software and Documentation. Except as expressly stated in this EULA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Licensor. Any condition, warranty, representation or other term concerning the access and use of the Software and Documentation which might otherwise be implied into, or incorporated in, this EULA whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
7.6 Where Software is supplied to Licensee via an authorised reseller of Licensor, Licensor does not guarantee the performance of that authorised reseller and is not responsible for any acts or omissions of that authorised reseller. Any claim by the Licensee related to the performance of or acts or omissions by any authorised reseller must be brought by Licensee directly against the authorised reseller in question.
8. TERMINATION
8.1 Licensor may terminate this EULA and Licensee’s use of the Software and Documentation under it immediately by written notice to Licensee if Licensee:
(a) commits a material or persistent breach of this EULA which Licensee fails to remedy (if remediable) within 14 days after the service of written notice requiring Licensee to do so;
(b) fails to pay any amount due from it under the Commercial Terms (whether owed directly to Licensee and/or to any authorised reseller) in accordance with the Commercial Terms and fails to pay such overdue amount within 14 days after service of a written request for such overdue payment; or
(c) becomes bankrupt or goes into liquidation (whether voluntary or compulsory), becomes insolvent, is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of that party or the other party suffers any similar process in any jurisdiction outside of England and Wales.
8.2 Unless terminated earlier in accordance with this EULA, this EULA and Licensee’s right to use the Software and Documentation under it shall remain in force for the period as detailed in the Commercial Terms. At the end of such period this EULA and the Licensee’s right to use the Software and Documentation under it shall automatically terminate.
8.3 Upon termination of this EULA for any reason:
(a) all rights granted to Licensee under this EULA shall cease; and
(b) Licensee must immediately cease all access and use of the Software and Documentation previously authorised under this EULA and if requested to do so by the Licensor shall certify to the Licensor in writing via a senior officer of the Licensee that it has done so.
8.4 Termination of this EULA on whatever basis shall be without prejudice to any rights or obligations of either party which have accrued prior to the date of termination and shall not affect the continuing in or coming into force of any provision of this EULA which, whether expressly or by implication, is to continue in or come into force following termination.
9. COMMUNICATIONS AND NOTICES
9.1 Any notices to be served by either Licensor or Licensee on the other shall be in writing and shall be sent by pre-paid registered post to the registered office address of the recipient. Such notices shall be deemed to have been received by the recipient 72 hours after posting provided applicable evidence of posting is retained and produced on request.
10. OTHER IMPORTANT TERMS
10.1 Licensor may transfer its rights and/or obligations under this EULA and/or sub-contract the performance of any of its obligations to any third party without providing prior notice to Licensee.
10.2 Licensee may only transfer its rights or obligations under this EULA or sub-contract the performance of any of its obligations to a third party if approved by Licensor in advance in writing.
10.3 This EULA, the Documentation and any other document expressly referred to in this EULA or the Documentation constitutes the entire agreement between Licensor and Licensee. The Licensee acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Licensor which is not set out in this EULA or the Documentation and any other document expressly referred to in this EULA or the Documentation.
10.4 No variation or amendment of this EULA shall be binding unless made in writing and signed by or on the behalf of Licensor. For the avoidance of doubt, no authorised reseller has the authority to agree any variation or amendment to this EULA on the behalf of Licensor.
10.5 Licensor and Licensee (and any authorised reseller if applicable) are with respect to each other independent contractors and nothing in this EULA and no actions taken under it shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between Licensor and Licensee (and any authorised reseller if applicable).
10.6 If Licensor fails to insist that Licensee performs any of its obligations under this EULA, or if Licensor does not enforce its rights against Licensee, or if Licensor delays in doing so, that will not mean that Licensor has waived its rights against Licensee and will not mean that Licensee does not have to comply with those obligations. If Licensor does agree to waive any default by Licensee, that will only be valid if given by Licensor in writing and any such waiver will not mean that Licensor will automatically waive any later default by Licensee. Any rights or remedies available to Licensor under this EULA are not exclusive of each other or of any other rights or remedies which may be available to Licensor as a matter of general law.
10.7 Each of the clauses of this EULA operate separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.
10.8 A person who is not a party to this EULA shall have no right to enforce any term of this EULA pursuant to the Contracts (Rights of Third Parties) Act 1999.
10.9 Licensee acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this EULA. Accordingly, without prejudice to any other rights and remedies Licensor may have (whether under this EULA or otherwise), Licensor shall be entitled to the granting of equitable relief (including injunctive relief) concerning any threatened or actual breach of any of the provisions of this EULA.
This EULA, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. The Licensor and Licensee agree to the exclusive jurisdiction of the courts of England and Wales, save in respect of the enforcement of any judgment.