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1. GRANT AND SCOPE OF LICENCE |
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1.1 It is a condition precedent to this licence that you enter into and are at all
times during the term of this licence a party to a software maintenance agreement
with us relating to the maintenance of the Software (Maintenance Agreement). |
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1.2 In consideration of the payment of £1 (the Licence Fee), receipt of which
the Licensor hereby acknowledges, the Licensor hereby grants to you a non-exclusive,
non-transferable licence to use the Software and the Documentation on the terms
of this Licence until its termination in accordance with the provisions of condition
6. |
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1.3 You may: |
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(a) use the Software for your internal business purposes only, either (as agreed
between the parties): |
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(i) on one CPU at a time if the Licence is a single-user licence or the Software
is for single use; or |
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(ii) if the Licence is a multi-user or network licence, for the number of concurrent
users agreed between you and us; |
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(b) receive and use any free supplementary software code or update of the Software
incorporating "patches" and corrections of errors as may be provided by the Licensor
from time to time; |
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(c) use any Documentation in support of the use permitted under condition 1.2 and
make up to 1 copy of the Documentation as are reasonably necessary for its lawful
use. |
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2. LICENSEE'S UNDERTAKINGS |
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2.1 Except as expressly set out in this Licence or as permitted by any local law,
you undertake:
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(a) not to copy the Software or Documentation except where such copying is incidental
to normal use of the Software or where it is necessary for the purpose of back-up
or operational security; |
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(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify
the Software or Documentation; |
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(c) not to make alterations to, or modifications of, the whole or any part of the
Software nor permit the Software or any part of it to be combined with, or become
incorporated in, any other programs; |
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(d) not to disassemble, de-compile, reverse engineer or create derivative works
based on the whole or any part of the Software nor attempt to do any such things
except to the extent that (by virtue of section 296A of the Copyright, Designs and
Patents Act 1988) such actions cannot be prohibited because they are essential for
the purpose of achieving inter-operability of the Software with another software
program, and provided that the information obtained by you during such activities: |
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(i) is used only for the purpose of achieving inter-operability of the Software
with another software program; |
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(ii) is not disclosed or communicated without the Licensor's prior written consent
to any third party to whom it is not necessary to disclose or communicate it; and |
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(iii) is not used to create any software which is substantially similar to the Software; |
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(e) to supervise and control use of the Software and ensure that the Software is
used by your employees and representatives in accordance with the terms of this
Licence; |
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(f) to replace the current version of the Software with any updated or upgraded
version or new release provided by the Licensor under the terms of this Licence
immediately on receipt of such version or release; |
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(g) to include any copyright notice from time to time required by the Licensor on
all entire and partial copies of the Software in any form; |
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(h) not to 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. |
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2.2 You must permit the Licensor and its representatives, at all reasonable times
and on reasonable advance notice, to inspect and have access to any premises, and
to the computer equipment located there, at which the Software or the Documentation
is being kept or used, and any records kept pursuant to this Licence, for the purpose
of ensuring that you are complying with the terms of this Licence. |
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3. INTELLECTUAL PROPERTY RIGHTS |
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3.1 You acknowledge that as between you and the Licensor all intellectual property
rights in the Software and the Documentation throughout the world belong to the
Licensor, that rights in the Software are licensed (not sold) to you, and that you
have no rights in, or to, the Software or the Documentation other than the right
to use them in accordance with the terms of this Licence. |
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3.2 You acknowledge that you have no right to have access to the Software in source
code form or in unlocked coding or with comments. |
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3.3 If the integrity of this Software is protected by technical protection measures
(TPM) so that the intellectual property rights, including copyright, in the
Software of the Licensor are not misappropriated, you must not attempt in any way
to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire,
import, distribute, sell, nor let, offer, advertise or expose for sale or hire,
nor have in your possession for private or commercial purposes, any means whose
sole intended purpose is to facilitate the unauthorised removal or circumvention
of such TPM. |
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4. WARRANTY |
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4.1 The Licensor warrants that: |
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(a) any services provided by the Licensor in relation to the supply of the Software
(Services) will be performed substantially in accordance with the Documentation
(where relevant) and with reasonable skill and care PROVIDED THAT such warranty
shall not apply where the Services are used contrary to the Licensor’s instructions
or the Services are modified or altered by a party other than the Licensor or its
duly authorised contractors or agents; and |
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(b) during the period of 90 days from your first use of the Software (Warranty Period),
the Software will, when properly used, perform substantially in accordance with
the functions described in any Documentation (provided that the Software is properly
used on the computer and with the operating system for which it was designed as
referred to in the accompanying documentation), and the Documentation correctly
describes the operation of the Software in all material respects. |
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4.2 You acknowledge that the Software and Services have not been developed to meet
your individual requirements and that it is therefore your responsibility to ensure
that the facilities and functions of the Software and Services as described in the
Documentation meet your requirements. |
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4.3 You acknowledge that the Software and Services may not be free of bugs or errors
and you agree that the existence of any minor errors shall not constitute a breach
of this Licence. |
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4.4 The Licensor is not responsible for any delays, delivery failures, or any other
loss or damage resulting from the transfer of data over communications networks
and facilities, including the internet, and you acknowledge that the Services and
Documentation may be subject to limitations, delays and other problems inherent
in the use of such communications facilities. |
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4.5 If, within the Warranty Period, you notify the Licensor in writing of any defect
or fault in the Software in consequence of which it fails to perform substantially
in accordance with the Documentation, and such defect or fault does not result from
you having amended the Software or used it in contravention of the terms of this
Licence, the Licensor will, at its sole option, repair or replace the Software,
provided that you make available all information that may be necessary to assist
the Licensor in resolving the defect or fault, including sufficient information
to enable the Licensor to recreate the defect or fault. |
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4.6 If, within the Warranty Period, you notify the Licensor in writing of any non-conformance
of the Services with the warranty given at condition 4.1(a), the Licensor will use
reasonable commercial endeavours to correct any such non-conformance or provide
you with an alternative means of accomplishing the desired performance. Such correction
or substitution constitutes your sole and exclusive remedy for any breach of the
warranty given at condition 4.1(a). |
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4.7 The Licensor's obligations under conditions 4.5 and 4.6 are subject to compliance
by you with the terms of condition 2.1(f). |
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5. LICENSOR'S LIABILITY |
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5.1 Nothing in this Licence shall limit or exclude the liability of either party
for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation. |
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5.2 Subject to condition 5.1, the Licensor shall have no liability for losses suffered
by you arising out of or in connection with this agreement (including any liability
for the acts or omissions of its employees, agents and subcontractors), whether
arising in contract, tort (including negligence), misrepresentation or otherwise,
which fall within any of the following categories: |
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(a) loss of income; |
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(b) loss of business profits or contracts; |
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(c) business interruption; |
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(d) loss of the use of money or anticipated savings; |
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(e) loss of information; |
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(f) loss of opportunity, goodwill or reputation; |
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(g) loss of, damage to or corruption of data; or |
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(h) any indirect or consequential loss or damage of any kind howsoever arising and
whether caused by tort (including negligence), breach of contract or otherwise, |
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provided that this condition 5.2 shall not prevent claims for loss of or damage
to your tangible property that fall within the terms of condition 4 or any other
claims for direct financial loss that are not excluded by any of categories (a)
to (h) inclusive of this condition 5.2. |
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5.3 Subject to condition 5.1 and condition 5.2, the Licensor's maximum aggregate
liability under or in connection with this Licence, or any collateral contract,
whether in contract, tort (including negligence) or otherwise, shall be limited
to a sum equal to the higher of the Licence Fee or a sum equal to 50% of the maintenance
fees paid by you to the Licensor under the terms of the Maintenance Agreement in
the 12 months preceding any relevant breach of the terms of this Licence.
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5.4 Subject to condition 5.1, condition 5.2 and condition 5.3, the Licensor's liability
for infringement of third party intellectual property rights shall be limited to
breaches of rights subsisting in the UK. |
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5.5 This Licence sets out the full extent of the Licensor's obligations and liabilities
in respect of the supply of the Software, Services and Documentation. In particular,
there are no conditions, warranties, representations or other terms, express or
implied, that are binding on the Licensor except as specifically stated in this
Licence. Any condition, warranty, representation or other term concerning the supply
of the Software, Services and Documentation which might otherwise be implied into,
or incorporated in, this Licence, or any collateral contract, whether by statute,
common law or otherwise, is hereby excluded to the fullest extent permitted by law. |
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6. TERMINATION |
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6.1 The Licensor may terminate this Licence immediately by written notice to you
at any time following the occurrence of any of the following: |
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(a) you cease to be a party to the Maintenance Agreement with the Licensor (or the
Licensor’s nominated maintenance provider); or |
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(b) you commit a material or persistent breach of this Licence which you fail to
remedy (if remediable) within 14 days after the service on you of written notice
requiring you to do so; or |
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(c) you become insolvent or unable to pay your debts (within the meaning of section
123 of the Insolvency Act 1986), enter into liquidation, whether voluntary or compulsory
(other than for reasons of bona fide amalgamation or reconstruction), pass a resolution
for your winding-up, have a receiver or administrator manager, trustee, liquidator
or similar officer appointed over the whole or any part of your assets, make any
composition or arrangement with your creditors or take or suffer any similar action
in consequence of your debt, or become unable to pay your debts (within the meaning
of section 123 of the Insolvency Act 1986); or |
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(d) the licence granted to the Licensor in respect of the Software and Documentation
(under the terms of which the Licensor sub-licenses the Software and Documentation
to you) is terminated; |
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6.2 Upon termination for any reason: |
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(a) all rights granted to you under this Licence shall cease; |
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(b) you must cease all activities authorised by this Licence; |
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(c) where relevant, you must immediately delete or remove the Software from all
computer equipment in your possession and immediately destroy or return to the Licensor
(at the Licensor's option) all copies of the Software then in your possession, custody
or control and, in the case of destruction, certify to the Licensor that you have
done so. |
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7. TRANSFER OF RIGHTS AND OBLIGATIONS |
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7.1 This Licence is binding on you and us and on our respective successors and assigns.
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7.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or
any of your rights or obligations arising under it, without our prior written consent.
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7.3 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose
of this Licence, or any of its rights or obligations arising under it, at any time
during the term of the Licence. |
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8. EVENTS OUTSIDE THE LICENSOR'S CONTROL |
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8.1 The Licensor will not be liable or responsible for any failure to perform, or
delay in performance of, any of its obligations under this Licence that is caused
by an event outside its reasonable control (Force Majeure Event). |
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8.2 A Force Majeure Event includes any act, event, non-happening, omission or accident
beyond our reasonable control and includes in particular (without limitation) the
following: |
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(a) strikes, lock-outs or other industrial action; |
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(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack,
war (whether declared or not) or threat or preparation for war; |
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(c) the actions of any third party necessary for the performance of the Licensor’s
obligations under this agreement; |
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(d) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural
disaster; |
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(e) impossibility of the use of railways, shipping, aircraft, motor transport or
other means of public or private transport; |
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(f) impossibility of the use of public or private telecommunications networks;
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(g) the acts, decrees, legislation, regulations or restrictions of any government. |
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8.3 The Licensor's performance under this Licence is deemed to be suspended for
the period that the Force Majeure Event continues, and we will have an extension
of time for performance for the duration of that period. We will use our reasonable
endeavours to bring the Force Majeure Event to a close or to find a solution by
which our obligations under this Licence may be performed despite the Force Majeure
Event. |
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9. WAIVER |
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9.1 If the Licensor fails, at any time during the term of this Licence, to insist
on strict performance of any of your obligations under this Licence, or if the Licensor
fails to exercise any of the rights or remedies to which it is entitled under this
Licence, this shall not constitute a waiver of such rights or remedies and shall
not relieve you from compliance with such obligations. |
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9.2 A waiver by the Licensor of any default shall not constitute a waiver of any
subsequent default. |
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9.3 No waiver by the Licensor of any of these terms and conditions shall be effective
unless it is expressly stated to be a waiver and is communicated to you in writing. |
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10. SEVERABILITY |
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If any of the terms of this Licence are determined by any competent authority to
be invalid, unlawful or unenforceable to any extent, such term, condition or provision
will to that extent be severed from the remaining terms, conditions and provisions
which will continue to be valid to the fullest extent permitted by law. |
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11. ENTIRE AGREEMENT |
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11.1 This Licence and any document expressly referred to in it represent the entire
agreement between us in relation to the licensing of the Software and Documentation
and supersede any prior agreement, understanding or arrangement between us, whether
oral or in writing. |
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11.2 We each acknowledge that, in entering into this Licence, neither of us has
relied on any representation, undertaking or promise given by the other or implied
from anything said or written in negotiations between us before entering into this
Licence except as expressly stated in this Licence. |
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11.3 Neither of us shall have any remedy in respect of any untrue statement made
by the other, whether orally or in writing, prior to the date we entered into this
Licence (unless such untrue statement was made fraudulently) and the other party's
only remedy shall be for breach of contract as provided in this Licence. |
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12. LAW AND JURISDICTION |
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This Licence, its subject matter or its formation (including non-contractual disputes
or claims) shall be governed by and construed in accordance with English law and
submitted to the non-exclusive jurisdiction of the English courts.
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