XENSIS
SOFTWARE LICENCE AGREEMENT (14 June 2006)
This Xensis software licence is a
legal agreement between Xensis Limited and the Customer for the Xensis software
and documentation, (herein referred collectively as the 'SOFTWARE PRODUCT')
. By installing, copying,
downloading, accessing or otherwise using the Software Product, you agree to be
bound by the terms of this licence agreement.
If you do not agree to the terms of this licence agreement, do not
install, copy, download, access or otherwise use the Software Product.
You may, however, return it to Xensis Limited.
SOFTWARE PRODUCT Licence
Copyright laws and
international copyright treaties, as well as other intellectual property laws and treaties protect the SOFTWARE
PRODUCT.
Copyright in the SOFTWARE PRODUCT is owned by Xensis Limited.
1. Definitions
1.1 In this agreement unless the context otherwise requires:
'ACCEPTANCE DATE' means the date Customer is
deemed to have accepted the Software Product in accordance with clause 4.3 below
'ADDITIONAL SERVICES' means the provision of any services in additional to Technical Support as agreed between the Supplier and Customer for which the Supplier will make additional charges
'CHARGES' means the annual fee for the Technical Support as agreed between Supplier and Customer
'COUNTRY LAW' means the data within the System that pertains to intellectual property law within each country
'CREDITS' means the agreed number of Technical Support calls that can be made annually by the Customer within the agreed Charges
'CUSTOMER' means the person, firm or organisation (including holding company or subsidiary) whom
this agreement is with
'LICENCE FEE' means the one off fee for the licence as agreed between
Supplier and Customer
'NEW RELEASE' means any improved, modified or corrected version of any of
the Software Product from time to time issued by the Supplier as part of
Technical Support
'SOFTWARE PRODUCT' means the System and the User Documentation
'SUPPLIER' means Xensis Ltd., 5 Watford Road, New Mills, High Peak,
Derbyshire, SK22 4EJ, UK
'SYSTEM' means the software programs in object code form identified by
title and version number
'SYSTEM DOCUMENTATION' means the technical specifications from time to
time published by the Supplier in respect of the System
'TECHNICAL SUPPORT' means the provision of technical support for the
Software Product as agreed between Supplier and Customer
'TRIAL PERIOD' means the period set out in clause 4.1 below during which
Customer can Use the Software Product free of charge
'UNIT' means the number of computers the Software Product may be
installed on as agreed between Supplier and Customer
'USE' means the installation, copying, accessing, display, interaction
with or transmission of the Software Product for the processing of the
instructions contained in the System (or as the case may be the User
Documentation)
'USER DOCUMENTATION' means the instruction manuals, user guides and other
information made available by the Supplier in paper and/or machine readable form
to the Customer 2. Grant
of licence and provision of Technical Support 2.1
The Supplier in consideration of the payment by Customer of the Licence
Fee and Charges in accordance with clause 3 below hereby:
2.1.1
grants to Customer a non-exclusive, non-transferable, non-sub licensable,
non-irrevocable perpetual licence to Use the System on the specified
number of Units (and where
appropriate the User Documentation) and
to possess and refer to the User Documentation; and
2.1.2
undertakes to Customer to provide the Technical Support upon the terms
and conditions of this agreement
2.1.3
Supplier reserves all rights not expressly granted
3.
Fees
3.1
The Licence Fee shall be a one off payment as agreed between
Supplier and Customer.
3.2
The Charges shall be applied annually in advance for the provision of
Technical Support and include the cost of: (1) the provision of Technical
Support, (2) and the delivery of any New Release, and excludes anything else not
specifically included. Charges
specifically exclude the costs of: (1) implementation, (2) data conversion, (3)
training
3.3
The fees (together with value added tax thereon) shall be levied by the
Supplier on the Acceptance Date. If the Customer fails to pay the fee invoice
then the Supplier without prejudice to any other rights or remedies it may have
hereunder or at law terminate this agreement upon thirty (30) days' written
notice to the Customer.
4.
Installation testing and acceptance 4.1
Customer shall be entitled free of charge for a Trial Period of 30 days
following installation to Use the System (in association with the User
Documentation) on a single computer not for the purpose of its trade of business
but solely for the purpose of assessing whether the System meets its
requirements. 4.2
If during the Trial Period Customer decides that the Software Product
does not meet its requirements then Customer shall be entitled by removing the
software to terminate this agreement. Upon
any such termination the provisions of clause 12.3 below (but not 12.4) shall
apply. 4.3
If Customer during the Trial Period uses the System for the purposes of
its trade or business then (in either case) with effect from the day next
following the expiration of the Trial Period Customer shall be deemed to have
accepted the Software Product. 4.4
If Customer does not terminate this agreement by notice pursuant to
clause 4.2 above then following a reasonable period after the expiration of the
Trial Period Customer shall be deemed to have accepted the Software Product. 5. Technical
Support 5.1
With effect from the Acceptance Date and for the duration of this
agreement the Supplier shall upon request by Customer provide in respect of the
Software Product, Technical Support within such Response Time as agreed between
Supplier and Customer. 5.2
Technical Support shall be provided within the Charges up to the maximum
number of Credits as agreed between Supplier and Customer.
Supplier will levy an additional charge for support over and above the
agreed number of Credits.
5.3
Technical Support shall not include the diagnosis and rectification of
any fault resulting from:
5.3.1
the improper use operation or neglect of the Software Product;
5.3.2
save as is provided in clause 7 below the modification of the System or
their merger (in whole or in part) with any other software;
5.3.3
any repair adjustment alteration or modification of the System by
any person other than the Supplier without the Supplier's prior consent;
5.3.4
the Customer's infrastructure including client, servers, network
or printer configurations
5.3.5
the Customer's database administration including backup and
recovery
5.3.6
Country Law data unless covered by a separate agreement
5.3.7
Use of a version of the Software Product which is no longer
supported by the Supplier
5.3.8
failure by the Customer to implement recommendations in respect of
solutions and faults previously advised by the Supplier 5.4
The Supplier shall upon request by Customer provide Technical Support
notwithstanding that the fault results from any of the circumstances described
in clause 5.3 above. The Supplier
shall in such circumstances be entitled to levy additional charges. 6. Copying
of the Software Product 6.1
Customer shall be entitled to make one back-up copy of
the Software Product. Any
such copy shall in all respects be subject to the terms and conditions of this
agreement and shall be deemed to form part of the Software Product. 7.
Modification and merger 7.1
The System may not be reversed engineered, decompiled or disassembled.
The System is licensed as a single product, its component parts may not
be separated for Use. 7.2
Customer shall be entitled to merge the whole System in object code with
any other software program provided that upon the termination of this agreement
howsoever and whensoever occasioned Customer shall remove the System from any
software with which they have been merged. 7.3
The System as merged pursuant to clause 7.2 above shall remain subject to
the terms and conditions of this agreement. 8.
Warranty 8.1
Subject to the exception set out in clause 8.4 below the Supplier
warrants that: 8.1.1
its
title to and property in the Software Product is free and unencumbered and that
it has the right power and authority to license the same upon the terms
and conditions of this agreement; 8.1.2
the media upon which the Software Product is stored will for a period of
twelve (12) months from the Acceptance Date be free from defects in
materials design and workmanship; 8.1.3
the System will for a period of three
(3) months from the Acceptance Date conform to the System Documentation; and 8.1.4
it will perform the Technical Support and
Additional Services with reasonable care and skill. 8.2
Customer shall give notice to the Supplier as soon as it is reasonably
able upon becoming aware of a breach of warranty. 8.3
Subject to clause 8.4 below the Supplier shall remedy any breach of the
warranties set out in clauses 8.1.2 and 8.1.3 above by the provision of
Technical Support free of charge.
8.4
The Supplier shall have no liability to remedy a breach of warranty where
such breach arises as a result of any of the circumstances described in clause
5.4 above.
8.5
Without prejudice to the foregoing the Supplier does not warrant
that the Use of the System will meet Customer's data processing requirements or
that the operation of the System (including the User Documentation) will be
uninterrupted or error free.
8.6
Subject to the foregoing all conditions, warranties, terms and
undertakings express or implied, statutory or otherwise in respect of the
Software Product and the provision of the Technical Support and Additional
Services are hereby excluded. 9.
Year
2000 Date 9.1
The Supplier warrants that the Software Product is and shall be coded
such that they and/or any other goods or services licensed to Customer hereunder
("Product") will not be affected whether in performance, functionality
interoperability or otherwise by any impact on the Date Format caused by the
year 2000 where "Date Format" means the field configuration and/or the
associated processing which contains the date information within any part of the
Product. Without limitation to the above, the Supplier warrants that: 9.1.1
No valid value for the Current Date (where Current Date means the actual
calendar date upon which the Product is being operated) will cause any
interruption, malfunction or reduction in performance. 9.1.2
All manipulations of time-related data will produce the desired results
for all valid date values within the application domain and in combination with
other products beyond the year 2000; 9.1.3
Date elements in interfaces and data storage will permit specifying the
century to eliminate date ambiguity without human intervention including leap
year calculations; 9.1.4
Where any date element is represented without a century, the correct
century shall be unambiguous for all manipulations involving that element; 9.1.5
The Product will specifically include the ability to correctly recognise,
process, manage, manipulate and store millennial dates without affecting the
integrity of data, output (including but not limited to reports and screen
contents) or interpretation, without interruption, without any errors relating
to date data, 9.2
The Supplier further warrants that any modifications made by the Supplier
to the Product or any services performed by the Supplier will not corrupt any
data included in Customer's computer network, do not and will not affect the
performance functionality or the interoperability with other systems and do not
and will not contain or introduce any computer viruses into Customer's computer
network. 10.
Intellectual property rights indemnity 10.1
The Supplier will indemnify and hold harmless Customer against any
damages (including costs) that may be awarded or agreed to be paid to any third
party in respect of any claim or action that the normal operation possession or
use of the Software Product by Customer infringes the patent, copyright,
registered design or trade mark rights of the third party (an 'Intellectual
Property Infringement') provided that Customer: 10.1.1
gives notice to the Supplier of any Intellectual Property Infringement
forthwith upon becoming aware of the same; 10.1.2
gives the Supplier the sole conduct of the defence to any claim or action
in respect of an Intellectual Property Infringement and does not at any time
admit liability or otherwise attempt to settle or compromise the said claim or
action except upon the express instructions of the Supplier; and 10.1.3
acts in accordance with the reasonable instructions of the Supplier and
gives to the Supplier such assistance as it shall reasonably require in respect
of the conduct of the said defence including without prejudice to the generality
of the foregoing the filing of all pleadings and other court process and the
provision of all relevant documents. 10.2
The Supplier shall reimburse Customer its reasonable costs incurred in
complying with the provisions of clause 10.1 above. 10.3
The Supplier shall have no liability to Customer in respect of an
Intellectual Property Infringement if the same results from any breach of
Customer's obligations under this agreement. 10.4
In the event of an Intellectual Property Infringement the Supplier shall
be entitled at its own expense and option either to:
10.4.1
procure the right for Customer to continue using the Software
Product; or
10.4.2
make such
alterations modifications or adjustments to the Software Product that they
become non-infringing without incurring a material diminution in performance or
function; or
10.4.3
replace the
Software Product with non-infringing substitutes provided that such substitutes
do not entail a material diminution in performance or function. 10.5
If
the Supplier in its reasonable judgment is not able to exercise any of the
options set out at clauses 10.4.1, 10.4.2 or 10.4.3 above within fourteen (14)
days of the date it received notice of the Intellectual Property Infringement
then Customer without prejudice to any other rights or remedies it may have
hereunder or at law shall be entitled to terminate this agreement by thirty (30)
days' written notice upon the Supplier. Upon
any such termination the provisions of clause 12.3 below (but not 12.4) shall
apply. 11.
Duration of agreement
This agreement shall continue until terminated in accordance with
the provisions of clause 12 below. 12.
Termination 12.1
This agreement may be terminated: 12.1.1
by Customer upon giving not less than
ninety (90) days' notice to the Supplier; 12.1.2
forthwith by either party if the other commits any material breach of any
term of this agreement and which (in the case of a breach capable of being
remedied) shall not have been remedied within
ninety (90) days of a written request to remedy the same; 12.1.3
forthwith by either party if the other shall convene a meeting of its
creditors or if a proposal shall be made for a voluntary arrangement within Part
I of the Insolvency Act 1986 or a proposal for any other composition scheme or
arrangement with (or assignment for the benefit of) its creditors or if the
other shall be unable to pay its debts within the meaning of section 123 of the
Insolvency Act 1986 or if a trustee, receiver, administrative receiver or
similar officer is appointed in respect of all or any part of the business or
assets of the other or if a petition is presented or a meeting is convened for
the purpose of considering a resolution or other steps are taken for the winding
up of the other or for the making of an administration order (otherwise than for
the purpose of an amalgamation or reconstruction). 12.2
Any termination of this agreement pursuant to this clause shall be
without prejudice to any other rights or remedies a party may be entitled to
hereunder or at law and shall not affect any accrued rights or liabilities of
either party nor the coming into or continuance in force of any provision hereof
which is expressly or by implication intended to come into or continue in force
on or after such termination. 12.3
Subject to clause 12.4 below within
ninety (90) days of the termination of this agreement (howsoever and by
whomsoever occasioned) Customer shall destroy all copies of the Software Product
in its possession and a duly authorised officer of Customer shall certify in
writing to the Supplier that Customer has complied with such obligation. 12.4
Notwithstanding the provisions of clause 12.3 above Customer shall be
entitled for a period of ten (10) years from the date of termination to keep one
copy of the Software Product free of charge in a fire-proof room for archival
purposes. If Customer uses any of the System other than for archival
purposes it shall forthwith become liable to pay to the Supplier its then
current charges for the use of the System or any equivalent software then
licensed in substitution for the System. 12.5
Customer is not entitled to any refunds of Licence Fee or Charges as a
result of any termination of this agreement 13.
Non-assignment Neither party shall assign all or any part of the
benefit of this agreement without prior written notice from the other party. 14.
Outsourcing Customer will not, unless they have the prior
written consent of Supplier have the right to select and employ third parties to
operate and use the Software on Customer's behalf in providing outsourcing
services or any other similar type of facilities management service to Customer.
Consent will not be reasonably withheld or delayed by Supplier. 15.
Waiver 15.1
No delay or omission on the part of any party to this agreement in
exercising any right, power or remedy provided by law or under this agreement
shall:
15.1.1
impair such right, power or remedy; or
15.1.2
operate as a waiver thereof. 15.2
The single or partial exercise of any right, power or remedy provided by
law or under this agreement shall not preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. 15.3
The rights, powers and remedies provided in this agreement are cumulative
and not exclusive of any rights, powers and remedies provided by law. 16.
Notices
All notices shall be in writing and sent to the other party by prepaid
first class mail at the address specified in this agreement or its last known
address. Any notice so posted shall
be deemed in absence of evidence of earlier receipt to have been served five
days after such posting and in proving such service it shall be sufficient to
prove that the letter containing the notice was properly addressed and posted as
a pre-paid letter. Any change of
address by either party during the term of this agreement shall be notified
promptly to the other party. 17.
Invalidity and severability 17.1
Should any provision of this agreement, be held to be illegal, invalid or
unenforceable in any respect by any judicial or other competent authority under
the law of any jurisdiction: 17.1.1
such provision shall, so far as it is illegal, invalid or unenforceable
in any jurisdiction, be given no effect by the parties and shall be deemed not
to be included in this agreement in that jurisdiction; 17.1.2
the other provisions of this agreement shall be binding on the parties in
that jurisdiction as if such provision were not included herein; 17.1.3
the legality, validity and enforceability of the provision in any other
jurisdiction shall not be affected or impaired; and 17.1.4
the parties agree to negotiate in good faith to amend such provision to
the extent possible for incorporation herein in such reasonable manner as most
closely achieves the intention of the parties and without rendering such
provision invalid or unenforceable. 18.
Entire agreement 18.1
The Supplier shall not be liable to Customer for any loss whatsoever
arising from or in connection with any representations, agreements, statements
or undertakings made prior to the date of execution of this agreement other than
those representations, agreements, statements or undertakings confirmed by a
duly authorised representative of the Supplier in writing or expressly
incorporated or referred to in this agreement. 18.2
Customer accepts that the Software Product was not designed and produced
to its individual requirements and that it was responsible for selection. 19.
Law
For the exclusive benefit of the other party hereto, each party to this agreement
irrevocably agrees that the courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this agreement and
that accordingly any proceedings may be brought in such courts. 20.
Trade marks
Xensis, xen-IP, xen-PAT, xen-TM, xen-Comm, xen-ProView, xen-CommView,
xen-Web, xen-SE, xen-SE Plus, xen-DBU, xen-IP Professional, xen-PAT Professional, xen-TM
Professional, xen-Comm Professional, xen-ProView Professional,
xen-CommView Professional and the Xensis logo are trade marks of Xensis Ltd.
This agreement does not grant Customer any rights in connection with any
trade marks of Xensis Ltd.
21. Limit of Liability Supplier’s liability in any event whatsoever arising out of the Use of the Software Product or the provision of or failure to provide Technical Support or Additional Services shall be limited to the amount paid by the Customer for the Software Product and/or Service or GB £5.00 whichever is the greater.