CUBICSPACE and CUBICSPACE STUDIOS LTD ("Cubicspace") STANDARD TERMS OF BUSINESS, applicable to all contracts for the supply by Cubicspace of software, data libraries or other items.
1. Definitions and Interpretation
1.1 In these terms, unless the context otherwise requires, the following expressions have the following meanings:
"Contract" means any contract of which these terms form part;
"Customer" means the legal entity purchasing from Cubicspace;
"Fees" means licence and any other fees due to Cubicspace for Products and Services;
"Libraries" means all products supplied by Cubicspace which comprise data;
"Products" means Software and Libraries and all associated documentation, as well as any services which can include design and art/modeling;
"Software" means all products supplied by Cubicspace which comprise computer software in executable form.
2. Licence
2.1 At time of installation, Products may display end-user licence terms (each a "EULA"). Customer must agree to each such EULA in order to use that Product. The sole option if Customer does not fully agree to the terms of a EULA is to return the relevant Product (complete with all elements, such as documentation, packaging etc.) to Cubicspace for a full refund of the Fees paid for it. All EULA terms are available in writing on request and may be viewed online at www.cubicspace.com/end_user_licence.htm or such other location as apparent from the Cubicspace website. By signing and returning to Cubicspace the Order Acknowledgement, Customer is agreeing to the incorporation of EULA terms into the relevant Contract.
2.2 Customer shall be responsible for all use of Products, and without limitation shall not allow anyone to use the Products (or any part of them) other than employees of Customer (or if Customer is a living person, Customer himself) who register with Cubicspace in accordance with the instructions supplied. Customer shall ensure that everyone who uses the Products does so in accordance with these terms and all applicable EULAs.
3. Charges and Payment
3.1 Customer will pay the Fees to Cubicspace, in the currency indicated on the Order Acknowledgement. Payment for all Products/Services is required in cleared funds prior to any shipment/delivery of those Products by Cubicspace, unless Cubicspace has separately agreed in writing to give credit. Where so agreed, then - unless overridden in that agreement - Cubicspace may send a Proforma Invoice to the Customer for the Fees for any Product, with payment due within a maximum period of 30 days from the date shown on the invoice, In the event that payment is for services, then Customer will pay 50% with Order and 50% on delivery should the project timescale be within one calendar month, and if longer then, at least one-third of the total fee with order, one-third at a natural and mutually agreed stage, and the balance at the end of the project timescale. All sums stated herein are exclusive of VAT or other applicable sales taxes, duties, and all packaging, delivery and other charges of any kind, which Customer shall pay in addition to those sums. Where required and requested, Cubicspace will issue an appropriate invoice.
3.2 Without prejudice to any other rights or remedies available to Cubicspace, if any amounts are not paid by Customer by the due date then: (a) all outputs resulting from use of the Products shall be owned by Cubicspace, and Customer shall not disclose, copy or distribute any of them, and (b) Cubicspace shall be entitled to do any or all of the following: (i) terminate all rights of Customer under any EULAs; (ii) revoke (in relation to further Products) any agreement to give credit; (iii) suspend performance of any obligations on Cubicspace until payment is made; (iv) charge interest on unpaid amounts (from the date payment was due until the date of payment, including after any judgement has been obtained) at the rate of 1% per month or part thereof.
3.3 In any event, any designs, ideas, concepts, interpretations, direction, production, modelling, artwork, or development for a client by Cubicspace shall remain the property of Cubicspace unless a separate arrangement has been agreed between the parties. 4. Ownership of Rights
4.1 All title, ownership rights and intellectual property rights in and relating to Products and any copies thereof belong to Cubicspace (or its licensor as appropriate) and Customer will not have any such rights in relation to Products or in any copies thereof. Customer agrees not to remove, suppress or modify any proprietary marking, including any trademark or copyright notice, on or in any Products. Customer shall permit Cubicspace at all reasonable times to check that use of Products by Customer complies with all EULAs.
5. Support
During the currency of any EULAs, and while Cubicspace makes such services generally available, it will provide helpdesk assistance to Customer in accordance with its then current support policies, in order to answer any queries in relation to the use and operation of the Products. If any defects in the Products arise, Customer shall notify Cubicspace. Cubicspace shall use reasonable endeavours to respond with advice on how to rectify or work around the defect within a reasonable time following Customer's notification. This is Cubicspace's sole obligation, and no warranty is given as to the results achieved from use of the helpdesk.
6. Training
If agreed between the parties Cubicspace will provide training in Products as follows: (a) all training will be in the English language; (b) the specific form and content of the training shall be as set out in Cubicspace's standard training course or as reasonably determined by Cubicspace; (c) training will be provided in a timescale to be agreed by the parties; and (d) Cubicspace shall be entitled to charge for training services at its then prevailing standard rates for training at the time unless agreed otherwise in writing with Customer.
7. Delivery and Risk
Cubicspace will supply Products or services, to Customer's address shown on the Order Acknowledgement, in accordance with the agreed timescale Risk shall pass to Customer upon shipment.
8. Confidential Information
Each party shall keep confidential any confidential information disclosed to it by the other. This includes information which is marked as being confidential or which, from its nature, content or the circumstances in which it is provided, might reasonably be supposed to be confidential (including but not limited to the source code of all Software). Neither party shall disclose any such information to anyone else except to those of their employees who need the information in order to enable the party concerned to carry out any of its obligations under a Contract or exercise any of its rights under a Contract. Each party shall ensure that any person to whom information is disclosed complies with all conditions of confidentiality applying to that information. The obligations of confidentiality in these terms do not apply to any information which: (a) is generally available to the public, unless this availability results from a breach of these terms; (b) the party receiving the information already possesses or which it obtains or originates independently in circumstances in which that party is free to disclose it to others; (c) is trivial or obvious; (d) must be disclosed by any court or tribunal that is authorised to order its disclosure. The obligations of confidentiality set out in this clause 8 will survive termination of any EULAs or any Contract.
9. Warranties
9.1 Cubicspace warrants that it has the right to allow Customer to use the Products as licensed by Cubicspace and that the Products, when used or operated in accordance with these terms and any applicable EULA and any documentation or instructions provided by Cubicspace from time to time, will not infringe any copyright belonging to any third party.
9.2 If Cubicspace provides any services to Customer under or in connection with these terms (including help-desk services), Cubicspace warrants that those services will be provided with reasonable skill and care. However, Cubicspace does not warrant that those services will be timely or effective, whether to resolve a problem or otherwise, in all cases or any particular case.
9.3 Cubicspace warrants that the Products perform in material respects in accordance with the accompanying documentation and that it has checked the Software using current commonly used virus-checking software. Where Cubicspace has offered Customer a free, fixed term evaluation licence prior to Customer's purchase of the Product, Customer acknowledges that it has, through its appropriately skilled employees, evaluated the Products (including as to functionality, performance in Customer's chosen computing environment, and suitability), and accordingly Cubicspace does not give or enter into any conditions, warranties or other terms with regard to the Products other than the warranties set out in this clause 9. Save as expressly provided, no other warranties, undertakings, conditions or other terms of any kind, express or implied, statutory or otherwise shall apply and all such terms as to condition, quality, performance, or fitness for purpose hereby excluded. Cubicspace does not warrant that the Software is virus-free or that its use or operation will be error free or uninterrupted. IF YOU PURCHASED THE SOFTWARE AS A CONSUMER, THEN THE WARRANTIES AND DISCLAIMERS SET OUT IN CLAUSES 9-10 DO NOT AFFECT YOUR STATUTORY RIGHTS.
9.4 Customer acknowledges that the computing environment in which the Products are used has a material effect on their operational performance. Cubicspace accepts no liability for the validation of acceptable performance in Customer's chosen computing environment and is Customer's sole responsibility.
10. Liability
10.1 Cubicspace's liability to Customer for death or personal injury caused by the negligence of Cubicspace or its servants or agents, for fraudulent misrepresentation or in relation to any other liability which may not by applicable law be excluded or limited is not excluded or limited. Subject to that, Cubicspace's liability under or in relation to any Contract (whether for negligence, breach of contract or otherwise) shall be limited in aggregate to the total sums due to be paid to Cubicspace under that Contract, and Cubicspace shall not be liable to Customer for any loss of profit or contracts, loss of sales or revenue, loss of turnover, loss of or corruption to computer equipment and data, loss of goodwill or anticipated savings, loss of operation and management time or for any indirect, consequential or special loss (however it arises).
10.2 Cubicspace shall have no liability for any loss or corruption of any Customer data, or for its replacement, correction or reinstatement, save where caused by Cubicspace's wilful default.
10.3 Customer shall indemnify Cubicspace in respect of any loss damage, cost or expense (including legal costs) suffered by Cubicspace as a result of any breach by Customer, its employees, contractors or agents of these terms or any EULAs relating to Products supplied.
11. Termination
Cubicspace may terminate any Contract immediately on written notice to Customer if Customer materially breaches any of its terms, whereupon: (i) no sums paid are refundable and any sums still due shall be paid within 20 days of termination; and (ii) if requested by Cubicspace (before or after termination) to return, or to destroy, all or any Products covered by that Contract, and/or all or any confidential information, Customer will do so immediately, keeping no complete or partial copies.
12. Miscellaneous
12.1 No standard terms of Customer or any oral terms shall be of any effect in varying these terms or any EULA or any Contract, save if Cubicspace agrees to include additional terms on its Order Acknowledgement prior to sending it to Customer for signature. These terms shall prevail over any EULA terms relating to Products, to the extent of inconsistency. Such EULA terms are displayed at time of installation of the Software and may also be viewed at www.cubicspace.com/end_user_licence.htm or such other location as apparent from the Cubicspace website. These terms, together with those on an Order Acknowledgement and all EULAs applicable to the Products covered by it constitute the entire agreement and understanding of the parties with respect to that Contract and supersede all prior agreements and representations written or oral.
12.2 Cubicspace may sub-contract performance of any of its obligations under a Contract or assign a Contract or any of its rights or obligations thereunder as it sees fit. Each Contract is personal to Customer. The rights and obligations of Customer under a Contract may not be sub-licensed, assigned or otherwise transferred by Customer. No term of a Contract is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to it.
12.3 Each Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts, without prejudice to Cubicspace's right to enforce its intellectual property rights in any court worldwide accepting jurisdiction.

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