Sale of Software and Services: Terms and Conditions

Carefully read the following terms and conditions. Installation of the Software constitutes your acceptance of these terms and conditions and your agreement to abide by them.

Each individual user, company, agency or institution that uses this program must license the product to a unique computer. Should you wish to install the software on another computer an additional license will need to be purchased.

1. Software Licence

1.1
Sarcophagus Limited (the "Company") hereby grants to the Customer a non-exclusive and non-transferable licence (the "Licence") to use on and in conjunction with hardware approved by the Company (the "Designated Hardware")

a) the computer programs specified overleaf (the "Software") and
b) any operating manuals and other documentation downloaded by the Customer to aid the use and application of the Software (the "User Manuals")

1.2
In respect of the Software, the Licence becomes effective upon payment in full by the Customer of the Initial Charge. The License shall continue for a period of 10 years.

1.3
The Customer acknowledges that it is only licensed to use the Software and User Manuals in accordance with the express terms of this Agreement and not further or otherwise. In particular the Customer undertakes to the Company to:

a) ensure the Software is only used on the Designated Hardware, save only that if the Software and User Manuals cannot be used with the Designated Hardware because it is inoperable due to causes beyond the control of the Customer, then the Licence shall be temporarily extended to use with any other appropriate hardware until such failure has been remedied,
b) maintain and operate the Software in a proper and prudent manner in accordance with any User Manuals and such other advice and instructions as the Company may issue from time to time, and allow its use only by competent and duly authorised personnel,
c) keep a minimum of [3] separate backups of its current data of a standard and frequency to allow it to recover information without undue loss of staff time,
d) not permit any alterations in the Software or the User Manuals or any operating instructions without the prior written consent of the Company, and
e) notify the Company of any defect or alleged defect in the Software within a period not exceeding [5] days from the date the defect becomes apparent.

1.4
The Software and User Manuals and the copyright and other intellectual property rights of whatever nature therein shall remain the property of the Company at all times. The Customer shall notify the Company immediately if the Customer becomes aware of any authorised use of the whole or any part of the Software or User Manual by any third party.

1.5
The use of the Software and User Manuals is restricted to use for the Customer's own internal business purposes.
The prices on the website are for a single user license which permits one user, company, agency or institution to install MsgSave on to a unique computer. The software is not transferable and shall only be used to archive a single users email excluding public folders. A corporate license is required for companies wishing to use the software to archive many users emails or archive public folders (available on request). The cost of this version is dependent upon the number of mailboxes and users or the number of staff in the case of public folders. Should you wish to transfer or install the corporate or the single user version on another computer an additional license will need to be purchased.
1.6
The Customer undertakes to treat strictly as confidential all information contained or embodied in the Software and User Manuals and shall fully indemnify the Company against any loss or damage with the Company may sustain or incur as a result of any failure of the Customer to respect such confidentiality.

1.7
The Customer shall effect and maintain adequate security measures to safeguard the Software and User Manuals from theft or unauthorised access.

1.8
The obligations as to confidentiality in this Agreement shall survive any termination of this Agreement or of the Licence.

1.9
The Customer shall make only such copies of the Software as are necessary for operational security and the conditions of the Licence shall apply equally to such copies.

2. Software Installation

2.1
The Company will supply the Software as a self extracting executable file available as a download via the Internet along with the user Manuals. A CD version and paper copies of the User Manuals can be purchased from the Company if required.

2.2
The Company will install the Software on the Designated Hardware and run the standard demonstration routines. Upon successful completion of the demonstration routines, the Customer will be deemed to have accepted the Software and, if required, will sign the Company's certificate of acceptance.

3. Warranty and remedies for defects

3.1
Unless specifically stated otherwise, the Software will be the latest available version. [It is the Customer's responsibility to ensure that the Software meets the Customer's requirements].

3.2
In respect of the Software, the Company warrants that it will perform in accordance with the User Manuals. Any defects in the Software will be corrected by the Company as described in clause 5. This obligation to correct defects shall continue for the duration of the Licence, provided that the Software is the latest available version. The Company reserves the right, after due consultation with the Customer, to discontinue support on versions of the Software which the Company confirms are out of date.

4. Services

4.1
The Company will provide support, software maintenance and updated versions of the software for an annual support fee equal to 10% of the software license fee, (the "Services").

4.2
If the annual support fees are paid for the Services, the parties will be deemed to have entered into the Company's standard Software Maintenance & Support Agreement for a period of twelve months from the installation date save to the extent that such terms are inconsistent with the terms of this Agreement. A copy of the Software Maintenance and Support Agreement is available on request.

5. Software Maintenance

5.1
Provided the Annual support fees are paid up to date, the Company will provide the Customer with the Services at any time between 9.00 a.m. and 5.00 p.m. Monday to Friday, excluding Bank and Public Holidays. Time and days provided are for the United Kingdom (UK).

5.2
The Customer may telephone the Company's Support Desk for the purpose of reporting a fault in the Software.

5.3
In respect of the Company's Software, the Company will use all reasonable endeavours to correct the software fault (or at least provide a temporary solution) as soon as reasonably possible.

5.4
If the Company releases a new version of the Software in order to correct errors in the previous version the Company will make such release available to the Customer at no charge. This is defined as a minor release.

5.5
New versions with new functionality are defined as major releases which will be made available for an upgrade charge unless the Customer has paid the annual maintenance charge which shall be paid before the end of the first year of the licence. Major releases will be made available free of charge for the first year of the licence. If the annual maintenance charge is not paid in full within 30 days of the end of the year then the Customer shall pay the relevant upgrade fee.

5.6
Email support is provided for the 90 days free of charge unless the Company deems that there is a bug in the Software. This can be extended annually at a charge equal to 10% of the total combined order value and shall be paid before the support cover elapses.

5.7
Where the optional support contract is not paid the Company will provide the Customer with assistance charged at 50 pounds sterling per hour plus taxes if applicable.

6. Charges and Payments

6.1
The Companies current scale of charges is available on the Companies Web site.

6.2
The Charges for the Software and the optional Services charges for maintenance and updates shall be due before the Company will provide the Customer with the required software unlocking codes.

6.3
Payment of each Annual support fee for the Software and the Services for years subsequent to the first shall be due upon each anniversary of the date of installation of the Software.

6.4
Where it is reasonable so to do, the Company reserves the right to demand part payment in respect of a part delivery.

6.5
The Company reserves the right to increase prices in line with its standard scale of charges in force at the time of delivery, but will not vary the price where the delivery is estimated to be due within 3 months of the date of this Agreement.

6.6
All prices exclude VAT or any similar tax, which shall be payable by the Customer as prescribed by law.

6.7
If any sum payable under this Agreement becomes overdue, the Company reserves the right (in addition to other remedies) to charge interest at the rate of 4% per annum above the base rate of Lloyds TSB plc.

7. Termination of Licence

7.1
The Company may terminate the Licence forthwith on giving written notice to the Customer if the Customer commits any material breach of its obligations under this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request by the other party to remedy the same.

7.2
In respect of Software, the Company may terminate the Licence forthwith if the Customer fails to pay the Annual support fee in accordance with this Agreement.

7.3
The Customer may terminate the Licence at any time by giving not less than [3] months written notice to the Company of its wish to do so.

7.4
Upon termination of the Licence for any reason, the Customer shall immediately return to the Company all copies of the Software and the User Manuals. The Customer shall not be entitled to any refund in respect of fees paid pursuant to this Agreement.

8. Information and Access

8.1
The Customer shall promptly provide the Company with such information as may reasonably be necessary to enable the Company to proceed with the performance of its obligations under this Agreement.

8.2
The Customer shall allow the Company's staff full and safe access to the Customer's premises at all reasonable times to allow the Company to perform its obligations under this Agreement.

9. Confidentiality

9.1
Each party will keep confidential all information obtained from the other pursuant to this Agreement and shall not divulge such information to any third party without the other party's written consent. Each party shall ensure that its servants, agents, and subcontractors are bound by the provisions of this clause. The obligations in this clause 9 shall survive termination of this Agreement.

10. Indemnity and Liability

10.1
The Company will indemnify the Customer against any claim that possession or use of the Software infringes the intellectual property rights of any third party, provided that the Company is given immediate and complete control of such claim and that the Customer gives the Company all reasonable assistance with such claim.

10.2
The Company accepts unlimited liability for death or personal injury caused directly by any negligent act of the Company, its servants, agents, or subcontractors, whilst engaged in the performance of this Agreement.

10.3
The Company accepts liability for actual physical damage to the Customer's property caused directly by any negligent act of the Company, its servants, agents, or subcontractors, whilst engaged in the performance of this Agreement. Such liability shall be limited to £[500,000] in respect of any one event or series of related events.

10.4
The Company shall not be liable under any circumstances for loss of the Customer's data, loss of profits or contracts, or any other indirect or consequential loss.

10.5
Any warranty or liability not expressly provided for in this Agreement is hereby excluded insofar as such exclusion is permitted by law.

10.6
Neither party shall be liable for failure to perform or delay in performing its obligations under this Agreement where such is due to any cause beyond that party's reasonable control, and a reasonable extension of time shall be allowed for performing such obligations.

11. Contract and Law

11.1
This Agreement represents the entire agreement between the parties in relation to the subject matter hereof, and the Customer warrants that it has not relied upon any other representations, oral or written other than those contained within this Agreement.

11.2
The Customer shall not assign this Agreement without the Company's prior written consent.

11.3
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales in connection with any dispute arising out of the terms or performance of this Agreement.

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MsgSave.com is a part of Sarcophagus Limited. This site and its content is copyrighted to Sarcophagus Limited 2002-2008. Please visit www.sarcophagus.co.uk for more information about the company, its products and services.

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