THESE ARE THE SEAT BASED LICENCE SUBSCRIPTION TERMS AND CONDITIONS REFERENCED IN THE PRINCIPAL AGREEMENT AND TO WHICH THE CUSTOMER AGREES IS IT BOUND.
1. INTERPRETATION
1.1. Definitions:
Services: shall be interpreted broadly as to cover any and all types of services which Ardenfort shall provide to the Customer, a more detailed reference to which shall be provided by means of the Principal Agreement.
2. GENERAL
2.1 In line with the provisions contained in these Seat-Based License Terms, in the execution of the Services by Ardenfort, the Customer will be required to purchase third party software licenses (referred to as “Software”)). The said Software products and/or licenses with or without enhancements may be for Microsoft products or otherwise of other independent software vendors (hereinafter “Independent Software Vendors”).
2.2 The Customer understands that seat-based subscription Software refers to a software license model based on the number of individual users who have access to a digital service or product and that per seat licensing often imposes restrictions on the users. A user may be a person, software or device accessing the software. The Software will be used by the Customer over a period of time, is provided in the form of a service and, by its own nature and model of subscription-based usage, is Software which will give rise to periodic invoicing covering the service in question. This is further explained and shown in the remaining provisions of these Seat-Based License Terms.
3. PURCHASE ORDERS
3.1 The Customer shall address any such requirements in the form of a purchase order (“Purchase Order”) to Ardenfort which shall use its reasonable endeavours to source, obtain and deliver to the Customer the Software in question in accordance with the provisions of these Seat-Based License Terms.
3.2 Each Purchase Order shall be subject to written acceptance by Ardenfort. No contract shall come into being between the Parties until Ardenfort has given such written acceptance to the Customer or if performance of the applicable Purchase Order has already commenced.
3.3 Ardenfort shall use its reasonable endeavours to then procure the supply the Software set out in each Purchase Order that is accepted by Ardenfort.
3.4 Ardenfort shall deliver the Software and any associated documentation to the location agreed in the Principal Agreement unless otherwise instructed by the Customer.
3.5 Ardenfort shall install the Software upon the equipment specified in the Purchase Order and all costs associated with installation (including but not limited to configurations, testing and deployment) shall be at the Customer’s charge in line with the Hourly Rates specified in the Principal Agreement.
3.6 While Ardenfort will use reasonable commercial efforts to meet delivery times, the Customer’s only remedy for unreasonable delay in delivery will be the right to terminate the relevant Purchase Order. No other remedies shall exist in favour of the Customer against Ardenfort.
4. THIRD PARTY LICENSE TERMS AND RELATED CONDITIONS AND LIMITATIONS
4.1 The Customer hereby agrees that the Software to be supplied to it by Ardenfort under these Seat-Based License Terms may contain license terms which the Customer hereby undertakes to comply. In addition, the sourcing and supply by Ardenfort of any such Software may be subject to the condition that Ardenfort and/or the Customer agree to a third party license or equivalent agreement (such as, but not limited to Microsoft cloud solution provider agreements) a copy of which shall be provided to the Customer and to which terms the Customer shall comply. The Customer shall abide with any and all terms and conditions attached to any such third party Software. Any such terms may cover a wide range of obligations which usually include issues concerning exclusivity, term, object and source code, number of users, prohibited copying of the Software, updates, modifications, sub-licensing, use of the Software within a group company structure, reservation of rights, warranties, reporting of defects, termination and renewal of use of the software, intellectual property rights, confidentiality, limitation of liability and other terms of use.
4.2 Ardenfort shall have no liability whatsoever to the Customer for any interruption to the Customer’s business where the cause of such interruption is a functional failure of the Software or service interruption, unless and to the extent that such failure derives from any act or omission of Ardenfort in the installation of the same.
5. PROCESS AND FINANCIAL CONSIDERATIONS
5.1 Once a Purchase Order is accepted by Ardenfort, Ardenfort shall immediately raise an invoice for the costs and fees of the Software products for Independent Software Vendors covering a period of one (1) month and, thereafter similar invoices shall be issued covering costs and fees to be incurred every subsequent month. For the purposes of clarity all such invoices shall be issued monthly in advance.
5.2 In addition to the invoice raised in clause 5.1 above, Ardenfort shall, if applicable, raise an invoice which shall cover the costs and fees associated with Software products relating to Microsoft cloud (subscription based) licensing for a period of one (1) month and, thereafter, invoices shall be issued covering costs and fees to be incurred every subsequent month. For the purposes of clarity all such invoices shall be issued monthly in advance. Ardenfort shall be irrevocably authorised to deduct the amount of any invoice from the Subscription Deposit amount as provided for by the provisions of clause 5.4 below.
5.3 The payment terms referred to in clauses 5.1 and 5.2 above shall hereinafter be referred to as the “Payment Term(s)”.
5.4 On the basis of the information provided in the Purchase Order and, in addition to the invoices raised in terms of clauses 5.1 and 5.2 above, Ardenfort shall immediately issue a request for payment (hereinafter the ‘Request for Payment’) amounting to one (1) calendar year’s worth of all costs and fees for the Software products relating to Microsoft cloud (subscription based) licensing and Independent Software Vendors software, which amount (hereinafter the ‘Subscription Deposit’) shall be held on account by Ardenfort.
5.5 Any amounts paid in excess by the Customer, due to a decrease in the number of licences, shall be credited to the Customer’s account and set-off against future invoices. Requests for Payment shall be issued yearly, or when 10% or less of the amount of the Subscription Deposit paid for the previous year remains on account.
5.6 A Request for Payment issued in terms of clause 5.4 above shall be paid by no later than fifteen (15) days from the date that the Request for Payment is received by the Customer.
5.7 The Customer agrees that should there be changes in circumstances relating to the type and extent of use of the Software (including but not limited to requests from the part of the Customer to increase the use of the Software such as by adding more users or client accounts) then Ardenfort shall raise a invoice to the Customer for any additional costs and fees.
5.8 The Customer shall pay each invoice of Ardenfort within fifteen (15) calendar days of receipt.
5.9 If the Customer fails to make any payment due to Ardenfort by the due date for payment, then, without limiting Ardenfort’s legal or equitable remedies 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 will accrue each day pursuant to the Late Payment of Commercial Debts Regulations 2013. The Customer shall pay the interest together with the overdue amount.
5.10 All amounts due in connection with these Seat-Based License Terms shall be exclusive of VAT which shall be payable in addition if applicable and 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).
6. CONFIGURATION SERVICES AND SUPPORT & MAINTENANCE SERVICES
6.1 Any and all types of configuration services to the Software which the Customer shall request Ardenfort to attend to shall be considered to be part of the Services which may be addressed by other agreements entered into with Ardenfort or by the provisions of the Principal Agreement.
6.2 Any and all types of software support and/or maintenance services which the Customer shall request Ardenfort to attend to shall be considered to be part of the Services dealt with as provided in the previous paragraph of this clause.
