END-USER LICENSE AGREEMENT FOR KNOWLEDGEWIRE SYSTEMS LTD SOFTWARE IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and KnowledgeWire Systems Ltd for the KnowledgeWire Systems Ltd software that accompanies this EULA, which includes associated media and customised ("Software"). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
PARTIES:
1. 'The Company': KNOWLEDGEWIRE SYSTEMS Limited
2. 'The Licensee': You (either an individual or a single entity)
RECITAL:
The Company has agreed to grant the Licensee a non exclusive License to use the computer programs and associated documentation free for 30 days upon the terms and conditions of this agreement.
OPERATIVE PROVISIONS:
1. Definitions
1.1 In this agreement unless the context otherwise requires:
'ACTUAL DELIVERY DATE' means the actual date that the Licensed Program Materials are delivered by the Company in accordance with clause 5 below.
'DELIVERY DATE' means the estimated date for the delivery of the Licensed Program Material set out in Part 1 of the Schedule.
'THE DESIGNATED SYSTEM' means the computer system with respect of which the License is granted.
'INTELLECTUAL PROPERTY RIGHTS' means copyrights, patents, trade marks, service marks, topography rights, rights in designs whether registered or unregistered, rights in inventions, applications for any of the foregoing, know how, confidential information, trade and business names and all other similar protected rights in any and all parts of the world.
'THE LICENSE' means the License granted by the Company pursuant to clause 2.1.
'LICENSE FEE' means the fee for the License and the services to be provided under this agreement after the 30 day free trial.
'LICENSED PROGRAMS' means the icon driven work flow modelling and database access computer programs in object code form identified by title and new release or version number in Part 4 of the Schedule including any New Release of the same made available to the Licensee pursuant to clause 11 below.
‘LICENSED PROGRAM MATERIALS' means the Licensed Programs, Licensed Program Source Code, the Program Documentation and the Media.
‘LICENSED PROGRAM SOURCE CODE’ – means the precompiled programming language code used to create the Licensed Programs identified by title and version number.
'MEDIA' means the media on which the Licensed Programs and the Program Documentation are recorded or printed as provided to the Licensee by the Company.
'NEW RELEASE' means any enhanced and/or amended and/or modified and/or replacement and/or corrected version of any of the Licensed Programs or Program Documentation or additions thereto from time to time made available to the Licensee after the 30 day free trial pursuant to clause 11 below.
'OPERATIONAL ENVIRONMENT' means the systems specified in the Program Documentation used (together with the Designated System) in the use of the Licensed Programs and in respect of which the License is granted.
'PROGRAM DOCUMENTATION' means the instruction manuals user guides and other information (identified by title and reference number in Part 5 of the Schedule) to be made available from time to time during this agreement by the Company in either printed or machine readable form at its discretion to the Licensee relating to the use of the Licensed Programs.
'PROGRAM SPECIFICATION' means the functions and facilities of the Licensed Programs described in the user guide which comprises part of the Program Documentation and such further Program Specifications as are provided by the Company to the Licensee in relation to New Releases.
'SITE' means the address for delivery of the Licensed Program Materials specified by the Licensee or such other address as agreed by the Company in writing from time to time after the 30 day free trial.
'SPECIFIED NUMBER OF COPIES OF THE LICENSED PROGRAM MATERIALS' means the number of copies specified.
'THE SCHEDULE' means the schedule to this agreement.
'THIRD PARTY SOFTWARE' means the third party software supplied with the Licensed Programs.
'USER' means any individual or employee of the Licensee accessing the Licensed Programs from a single processor keyboard terminal or peripheral device.
'USE' means to load the object code form of the Licensed Programs and/or (where in machine readable form) the Program Documentation from magnetic or other storage media into the Designated System and thereafter to store and run the Licensed Programs on the Designated System in accordance with the terms of this agreement.
'USE THE LICENSED PROGRAM MATERIALS' means to Use the Licensed Programs, and/or (where in machine readable form) the Program Documentation, to read and possess the Program Documentation in conjunction with the use of the Licensed Programs and to possess the Media.
'USE THE THIRD PARTY SOFTWARE' means to load the object code form of the Third Party Software in conjunction with the object code form of the Licensed Programs from magnetic or other media into the Designated System and thereafter to store and run the Third Party Software in conjunction with the Licensed Programs on the Designated System in accordance with the terms of this agreement.
2. Products and services to be provided
The Company hereby agrees to:
2.1 grant to the Licensee a non-exclusive License to Use the Licensed Program Materials;
2.2 deliver the Licensed Programs to the Licensee for installation on the Designated System;
2.3 provide operating manuals to the Licensee;
2.4 provide the other services hereinafter described;
3. Grant of License
3.1 The Company in consideration of the payment (after the 30 day free trial) by the Licensee of the License Fee in accordance with clause 4 below hereby grants to the Licensee with effect from the Actual Delivery Date a non-exclusive and non-transferable License to Use the Licensed Program Materials in the Operational Environment upon the terms and conditions of this agreement.
3.2 The Licensee shall Use the Licensed Program Materials for processing its own data for its own internal business purposes only. The Licensee shall not permit any third party to use the Licensed Program Materials whether in whole or in part in any way whatever nor use the Licensed Program Materials or any part or parts thereof on behalf of or for the benefit of any third party in any way whatsoever (including but without limitation using the Licensed Program Materials or any of them for the purpose of operating a bureau service).
3.3 The License shall not extend or be deemed to extend to any programs or materials of the Company other than the Licensed Program Materials unless specifically agreed to in writing by the Company
3.4 The Licensee hereby acknowledges that it is licensed to use the Licensed Program Materials only in accordance with the express terms of this agreement and not further or otherwise.
3.5 The use of the Licensed Program Materials is restricted to use on the Designated System.
3.6 The License is limited to the use of the Licensed Program Materials with the Designated System in the Operational Environment. The Licensee acknowledges that an additional License fee is payable for each additional user which is to have access to the Licensed Programs or any of them or any part or parts thereof.
3.7 Unless otherwise specifically permitted under the terms of the relevant license from a third party, the Licensee may Use the Third Party Software only in conjunction with and only in order to run the Licensed Programs but shall not use the Third Party Software whether in whole or in part for any other purpose or in any other way whatsoever or permit any third party to use the Third Party Software whether in whole or in part in any way whatever.
3.8 The Licensee agrees to comply with any additional Third Party Software conditions notified to it (including if so
required the execution and return of a Third Party Software License) and to indemnify the Company against any and all loss, costs, damages, claims, demands, and liabilities which the Company may sustain or incur as a result of any breach by the Licensee of such conditions.
4. License fee
4.1 The License Fee shall include the cost of the delivery of the Specified Licensed Program Materials and any New Release thereof.
4.2 The License Fee (together with value added tax thereon) shall be invoiced by the Company and shall be paid by the Licensee on receipt of the Company's invoice therefor.
4.3 If any sum payable under this agreement is not paid within 7 days after the due date (without prejudice to the Company's other rights and remedies) the Company reserves the right to charge interest on such sum on a day to day basis (as well after as before any judgment) from the due date to the date of payment (both dates inclusive) at the rate of 5 per cent above the base rate of NatWest Bank Plc for the time being in force.
4.4 Any charges payable by the Licensee under this agreement in addition to the License Fee shall be levied by the Company in advance and shall be payable by the Licensee (together with value added tax thereon) within 30 days after the receipt by the Licensee of the Company's invoice therefor.
5. Delivery and installation
5.1 The Company shall use its reasonable endeavors to deliver the Specified Number of Copies of the object code of each of the Licensed Programs in machine readable form only and of the Program Documentation to the Licensee on the Delivery Date or as soon thereafter as is possible to install the same on the Designated System at the specified Site.
6. Proprietary Rights
6.1 The Licensed Program Materials and all copyrights trade marks and other Intellectual Property Rights of whatever nature in and/or relating to the Licensed Program Materials are and shall remain the exclusive property of the Company and the Company reserves the right to grant licenses to use the Licensed Program Materials and Licensed Program Source Code to any other party or parties.
6.2 The Third Party Software and all copyrights, trade marks and other Intellectual Property Rights of whatever nature in and/or relating to the Third Party Software are and shall remain the exclusive property of the party.
6.3 The Licensee shall notify the Company immediately if the Licensee becomes aware of or suspects any unauthorised use of the whole or any part of the Licensed Program Materials or any other infringement of Intellectual Property Rights by any person or party.
6.4 The Licensee will permit the Company to check the use of the Licensed Program Materials by the Licensee at all reasonable times and for that purpose and the purpose of verifying the discharge of the Licensee's obligations under clause 23.3 the Company shall be entitled to enter any of the Licensee's premises on working days and during working hours (where possible) and on reasonable notice (and so that the Licensee hereby irrevocably licenses the Company, its employees and agents to enter any such premises for such purposes during the term of this agreeement).
6.5 The Licensee shall not:
6.5.1 save as provided in clause 9 below copy the whole or any part or parts of the Licensed Program Materials;
6.5.2 except to the extent and in the circumstances expressly required to be permitted by the Company by law, alter, modify, adapt or translate the whole or any part or parts of the Licensed Program Materials in anyway whatsoever.
6.5.3 without prejudice to the generality of clauses 6.5.1, 6.5.2 and 6.5.4, reverse compile, copy or adapt the whole or any part or parts of the Licensed Program Materials for the purposes of correcting errors in the Licensed Program Materials.
6.5.4 reverse compile or decompile the whole or any part or parts of the Licensed Program Materials from object code into source code or disassemble or reverse engineer the same or attempt to do any of such things save solely to the extent permitted by and subject to the conditions laid down in the Copyright Designs and Patents Act 1988 as amended by the Copyright (Computer Programs) Regulations 1992.
6.5.5 save as provided in clause 10 below merge or combine or incorporate or permit to be combined or merged with any other computer programs or documentation or to be incorporated in any other computer programs or documentation the whole or any part or parts of the Licensed Program Materials.
6.5.6 assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Program Materials or any of them.
6.5.7 remove or alter any copyright or other proprietary notice on the Licensed Program Materials or any of them.
6.6 To the extent that local law grants the Licensee the right to decompile the Licensed Programs in order to obtain information necessary to render the Licensed Programs interoperable with other computer programs used by the Licensee, the Company hereby undertakes to make that information readily available to the Licensee within 30 days of the details referred to below. The Company shall have the right to impose reasonable conditions such as a reasonable fee for doing so. In order to ensure that the Licensee receives the appropriate information, the Licensee must first give the Company sufficient details of the Licensee’s objectives and the other software concerned. Requests for the appropriate information should be given by notice to the Company in accordance with this agreement.
6.7 In the event that the Licensed Program Materials or any part or parts thereof come into the hands of a third party through the act, omission, default or negligence of the Licensee or any employee or former employee of the Licensee the Licensee shall forthwith pay to the Company the License fee which would be charged to such third party for a License to Use the Licensed Programs.
7. Confidentiality of the Licensed Program Materials
7.1 The Licensed Program Materials contain confidential information of the Company and the Licensee undertakes to treat as strictly confidential and keep secret the Licensed Program Materials and all information contained or embodied in the Licensed Program Materials and all information conveyed to the Licensee by training if any (hereinafter collectively referred to as 'the Information').
7.2 The Licensee shall not without the prior written consent of the Company divulge the whole or any part or parts of the Information to any person except the Licensee's own employees and then only to those employees who need to know the same.
7.3 The Licensee undertakes to ensure that the employees mentioned in clause 7.2 above are made aware prior to the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the Company and that all Intellectual Property Rights in the Licensed Program Materials are the property of the Company. The Licensee further undertakes to take all such steps as shall from time to time be necessary to ensure compliance by the said employees mentioned in clause 7.2 above with the provisions of this clause 7 and clause 6.5 of this agreement. The Licensee shall indemnify the Company against all and any loss or damage which the Company may sustain or incur as a result of the Licensee failing to comply with such undertakings.
7.4 The Licensee shall promptly notify the Company if it becomes aware of or suspects any breach of confidence by any person to whom the Licensee divulges all or any part of the Information and shall give the Company all reasonable assistance in connection with any proceedings which the Company may institute against such person for breach of confidence.
7.5 Without prejudice to the foregoing and to the provisions of clauses 9.5 and 9.6 below take all such other steps as shall from time to time be necessary to protect the confidential information and Intellectual Property Rights of the Company in the Licensed Program Materials.
7.6 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the License or this agreement.
8. Security and Control
8.1 The Licensee shall during the continuance of the License
8.1.1 effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person.
8.1.2 retain the Licensed Program Materials and all copies thereof under the Licensee's effective and exclusive control.
8.1.3 maintain a full and accurate record of the Licensee's disclosure of the Licensed Program Materials and produce such record to the Company on request from time to time.
9. Copying of the Licensed Program Materials
9.1 The Licensee may make only the number of copies of the Licensed Programs specified in Part 10 of the Schedule if any, and so many further copies of the Licensed Programs as are reasonably necessary for operational security and back up purposes but shall make no other copies thereof.
9.2 The License shall apply to all such copies as it applies to the Licensed Programs.
9.3 All such copies and the media on which they are stored shall be the property of the Company and the provisions of clause 9.5 below shall apply in relation thereto.
9.4 Save for those parts of the Program Documentation supplied by the Company in machine readable form and which are referenced by the Licensed Programs which the Licensee shall be entitled to copy to the extent only that such copying is reasonably necessary for the Use of such parts of the Program Documentation in accordance with the terms of the License, the Licensee shall not be entitled to copy in whole or in part the Program Documentation.
9.5 The Licensee shall reproduce on all copies (whether in machine readable or human readable form) of the Licensed Program Materials or any part or parts thereof the Company's copyright and trade mark notices;
9.6 The Licensee shall maintain an up to date written record of the number of copies of the Licensed Program Materials and of any part or parts thereof and their location and upon request forthwith produce such record to the Company.
10. Merger
10.1 The Licensee shall be entitled to use at its own expense and responsibility, the Licensed Programs in combination with any other programs used by the Licensee. Any and all of the Licensed Programs so used shall continue to be subject to the terms and conditions of this agreement. Where such other programs are the property of a third party the Licensee shall be responsible for obtaining all necessary consents to their use with the Licensed Programs. The Licensee shall indemnify the Company against any and all claims that the use of the Licensed Programs or any of them or any part or parts thereof in combination with such other program or programs infringes the intellectual property rights of any third party. Upon termination of this agreement and the License howsoever and whensoever occasioned the Licensee shall completely remove the Licensed Programs together with the Third Party Software from such combined work before returning or destroying the same in accordance with clause 23.3.
10.2 The Company shall not be responsible for any error in the Licensed Programs or failure of the Licensed Programs to fulfil the Program Specification insofar as such error or failure occurs in or is caused by any part of the Licensed Programs used by the Licensee as aforesaid and/or otherwise arises out of or is caused by such use as aforesaid.
11. New Releases
11.1 The Company may from time to time in the Company's sole discretion issue a New Release of the Licensed Programs or Program Documentation.
11.2 The Company shall from time to time issue to the Licensee the version of the Licensed Programs at that time being used by the Licensee with such New Release and the Licensee shall return to the Company (if required by the Company) the Licensed Programs or the previous New Release (as the case may be) and any part of the Program Documentation which has been superseded and all copies of the whole or any part thereof, or if required by the Company, shall destroy the same and certify in writing to the Company that they have been destroyed.
12. Warranty
12.1 Subject to the exceptions set out in clause 12.3 below the Company warrants that:
12.1.1 the Media (if any) will for a period of 90 days from the Actual Delivery Date be free from defects in materials design and workmanship.
12.1.2 the Licensed Programs will when delivered to the Licensee provide the facilities and functions set out in the Program Documentation when used in accordance with the instructions in the Program Documentation with the Designated System in the Operational Environment and that any New Release will provide the facilities and functions set out in the Program Documentation relating thereto when used in accordance with the instructions in the Program Documentation relating thereto with the Designated System in the Operational Environment;
12.1.3 the operating manual when used by appropriately skilled personel will enable the Licensee to use the Licensed Programs in accordance with this Agreement;
12.1.4 it has the full power and authority respectively to enter into this Agreement and to perform fully its obligations hereunder;
12.1.5 its entering into this Agreement will not violate any third party rights;
12.1.6 use by the Licensee of the Licensed Programs and Operating Manual in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party;
12.1.7 there are no claims, litigation or other proceedings pending or threatened against the Company which might adversely affect the rights of the Licensee hereunder;
12.1.8 the Licensed Programs will not contain any Trojan horses, worms or viruses.
12.2 If the Company receives written notice from the Licensee after the Actual Delivery Date of any breach of the warranties in 12.1.1 or 12.1.2 above then subject to the provisions of clause 12.3 below the Company will at its own expense and within a reasonable time after receiving such notice remedy the defect or error in question provided that in the case of warranties 12.1.1, 12.1.2, and 12.1.3 the Company shall have no liability or obligations under the said warranties unless it has received written notice of the error or defect in question no later than the expiry of 30 days after the Actual Delivery Date.
When notifying a defect or error the Licensee shall (so far as it is able) provide the Company with a documented example of such defect or error.
12.3 The Company shall have no liability to remedy a breach of warranty where such breach arises out of:
12.3.1 the use or operation improperly and/or otherwise than in accordance with best computing practice or the neglect of the Licensed Program Materials and/or the Designated System or any part or parts thereof;
12.3.2 without prejudice to the provisions of clause 6.5 above the modification of the Licensed Programs;
12.3.3 without prejudice to the provisions of clause 10 above the merger of the Licensed Programs (in whole or in part) with any other software not previously approved in writing by the Company;
12.3.4 the failure by the Licensee to implement reasonable recommendations in respect of or solutions to faults previously advised in writing by the Company;
12.3.5 without prejudice to the provisions of clause 6.5 above any repair, adjustment, alteration or modification of the Licensed Programs by any person other than the Company;
12.3.6 any breach by the Licensee of any of its obligations under any maintenance agreement in respect of the Designated System or any part or parts thereof;
12.3.7 the use of the Licensed Programs for a purpose for which they were not designed;
12.3.8 the use of the Licensed Programs otherwise than in accordance with the Program Documentation;
12.3.9 the use of the Licensed Programs on any computer system other than the Designated System and/or in any operational environment other than the Operational Environment without the prior written consent of the Company; or
12.3.10 any other breach by the Licensee of any of its obligations under this agreement;
12.4 The Company shall have no liability or obligations under the said warranties other than to remedy breaches thereof by the provision of materials and services within a reasonable time and without charge to the Licensee. If the Company fails to comply with such obligations its liability for such failure shall be limited to a sum equal to the License Fee. The foregoing states the entire liability of the Company whether in contract or tort, for defects and errors in the Licensed Program Materials and/or the Media.
12.5 Without prejudice to the foregoing the Company does not warrant that the Use of the Licensed Programs will meet the Licensee's data processing and/or user interface requirements or that the operation of the Licensed Programs (including where in machine readable form the Program Documentation) will be uninterrupted or error free.
12.6 The Licensee acknowledges that the Licensed Program Materials have not been prepared to meet the Licensee's individual requirements and that it is therefore the responsibility of the Licensee to ensure that the facilities and functions described in the Program Documentation meet its requirements. The Company shall not be liable for any failure of the Licensed Programs to provide any facility or function not specified in the Program Documentation.
12.7 Subject to the foregoing no warranty, condition, undertaking, obligation or term, statutory or otherwise, express or implied, whether by statute, common law, custom, trade usage, course of dealing or otherwise, in respect of the Licensed Program Materials or the provision of any services hereunder is given or assumed by the Company and all such conditions, obligations, warranties terms and undertakings are hereby excluded to the fullest extent permitted by law.
13. Limitation of liability
13.1 Save in the case of a breach of warranty in which case the provisions of clause 13.4 apply the following provisions set out the Company's entire liability (including any liability for the acts and omissions of its employees agents and sub contractors) to the Licensee in respect of:
13.1.1 any breach of its contractual obligations arising under this agreement; and
13.1.2 any representation statement or tortuous act or omission including negligence arising under or in connection with this agreement
AND THE LICENSEE'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 13.
13.2 Any act or omission on the part of the Company or its employees agents or sub contractors falling within clause 13.1 above shall for the purposes of this clause 13 be known as an 'Event of Default'.
13.3 The Company's liability to the Licensee for death or injury resulting from its own or that of its employees' agents' or sub contractors' negligence shall not be limited.
13.4 Subject to the limit set out in clause 13.5.1 below the Company shall accept liability to the Licensee in respect of damage to the tangible property of the Licensee resulting from the negligence of the Company or its employees agents or sub contractors.
13.5 Subject to the provisions of clause 13.3 above the Company's entire liability in respect of any Event of Default shall be limited to damages of an amount equal to;
13.5.1 L10,000 in the case of an Event of Default falling within clause 13.4 above; and
13.5.2 in the case of any other Event of Default the License Fee.
13.6 Subject to clause 13.3 above but otherwise notwithstanding anything else contained in this agreement the Company shall not be liable to the Licensee for loss of profits, contracts, goodwill or any other special, indirect or consequential loss whatsoever (including but not limited to loss or damage suffered by the Licensee as a result of an action brought by a third party) whether arising from negligence, breach of contract or howsoever even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Licensee incurring the same.
13.7 Subject to clause 13.3 above the Company shall not be liable to the Licensee for any loss arising out of any failure by the Licensee to keep full and up to date security copies of the computer programs and data it uses in accordance with best computing practice.
13.8 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
13.9 The Licensee hereby agrees to afford the Company not less than 30 days (following notification thereof by the Licensee) in which to remedy any Event of Default hereunder.
13.10 Except in the case of an Event of Default arising under clause 13.3 above the Company shall have no liability to the Licensee in respect of any Event of Default unless the Licensee shall have served notice of the same upon the Company within 3 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
13.11 Nothing in this clause shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.
14 Intellectual property rights indemnity
14.1 Subject to the provisions of clause 14.3 below the Company will fully indemnify and hold harmless the Licensee against any damages that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal possession or use of the Licensed Program Materials by the Licensee infringes the Intellectual Property Rights of said third party (an 'Intellectual Property Infringement') provided that the Licensee:
14.1.1 gives notice to the Company in writing of any Intellectual Property Infringement forthwith upon becoming aware of the same;
14.1.2 gives the Company the immediate and sole conduct of the defense 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 written instructions of the Company; and
14.1.3 acts in accordance with the reasonable instructions of the Company and gives to the Company all such assistance as it shall reasonably require in respect of the conduct of the said defense 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.
14.2 The Company shall reimburse the Licensee its reasonable costs incurred in complying with the provisions of clause 14.1 above.
14.3 The Company shall have no liability to the Licensee in respect of an Intellectual Property Infringement if the same results from any breach of the provisions of this agreement or from the use of the Licensed Program Materials or any part or parts thereof on and/or in conjunction with and/or in combination with any equipment (other than the Designated System) and/or computer programs and/or operational environment not supplied or approved in writing by the Company.
14.4 In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to:
14.4.1 procure the right for the Licensee to continue using the Licensed Program Materials; or
14.4.2 make such alterations, modifications or adjustments to all or any part or parts of the Licensed Program Materials that they become non infringing; or
14.4.3 replace all or any part or parts of the Licensed Program Materials with non infringing substitutes; or
14.4.4 if 14.4.1, 14.4.2 or 14.4.3 cannot be accomplished on reasonable terms refund to the Licensee a sum equal to the License Fee whereupon the License and this agreement shall terminate.
14.5 The foregoing states the entire liability of the Company to the Licensee in respect of the infringement of the intellectual property rights of any third party
15. Risk
15.1 Risk in the Media will pass to the Licensee on delivery. If subsequently the Media are (in whole or in part) destroyed damaged or lost the Company will as soon as reasonably practicable after request replace the same (embodying the relevant part of the Licensed Programs or Program Documentation) subject to the Licensee paying its then prevailing charges for such replacement.
16. Confidentiality
16.1 Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:
16.1.1 already in its possession other than as a result of a breach of this clause;
16.1.2 in the public domain other than as a result of a breach of this clause; or
16.1.3 required by law.
16.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 16.1 above by its employees and without prejudice to the provisions of clause 31 below its agents and subcontractors.
17. Training
17.1 The License Fee shall not include the provision of any training or training services.
18. Reference Site
18.1 The Licensee shall allow the Company access to the Site and the Designated System on reasonable notice during working hours (where possible) and to observe the use of the Licensed Programs by the Licensee by prior arrangement whenever reasonably requested by the Company during the continuance of this agreement to inspect and make modifications to the Licensed Program Materials and to run and demonstrate the Licensed Programs and the facilities and functions thereof to potential purchasers of the Licensed Programs.
The Licensee shall permit such potential purchasers to enter and remain on the Licensee's premises for such purposes.
19. Duration of agreement
19.1 This agreement shall commence on the date hereof and shall continue until terminated in accordance with the provisions of clause 23 below or as otherwise provided in this agreement.
19.2 The License shall terminate on termination of this agreement, howsoever and by whomsoever occasioned.
20. Software maintenance
20.1 Software support and maintenance is not covered by this agreement.
21. Operating Manuals
21.1 The Company shall provide the Licensee with the number of copies specified in Part 7 of the Schedule (if any) of a set of operating manuals for the Licensed Programs containing sufficient information to enable proper use of all the facilities and functions set out in the Program Documentation. If the Licensee requires further copies of such operating manuals then these may be obtained under License from the Company in accordance with its standard scale of charges for the time being in force.
22. Licensee's representatives
22.1 The Licensee shall communicate in writing to the Company upon the date hereof the identity of the person(s) who shall act as the sole contact point and channel of communication for any matters relating to or arising under this agreement during the currency of this agreement. The Licensee shall forthwith inform the Company in writing of any change in the identity of any such person(s).
23. Termination
23.1 This agreement may be terminated forthwith by notice in writing:
23.1.1 by the Company if the Licensee fails to pay any sum due hereunder within 30 days of the due date therefor;
23.1.2 by either party if the other commits any material breach of any term of this agreement (other than one falling within 22.2.1 above) and (in the case of a breach capable of being remedied) shall have failed within 30 days of a written request so to do, to remedy the breach (such request to contain a warning of intention to terminate);
23.1.3 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 shall cease or threaten to cease to carry on business 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 a bona fide scheme of solvent amalgamation or reconstruction).
23.1.4 by the Company if the Licensee permanently discontinues the use of the Licensed Program Materials.
23.2 Any termination of this agreement and the License (howsoever occasioned) 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 shall it affect the coming into force or the 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.
23.3 Forthwith upon the termination of this agreement and the License (howsoever and by whomsoever occasioned) the Licensee shall
23.3.1 return to the Company the Licensed Program Materials and all copies of the whole or any part or parts thereof together with the Third Party Software or, if requested in writing by the Company shall destroy the same (in the case of the Licensed Programs, the Third Party Software and where applicable the Program Documentation by erasing them permanently in their entirety from the magnetic media on which they are stored); and
23.3.2 cause the Licensed Programs, the Third Party Software (and where applicable the Program Documentation) to be permanently erased in their entirety from the Designated System.
and a duly authorised officer of the Licensee shall certify in writing to the Company that the Licensee has complied with such obligations.
24. Force majeure
24.1 Neither party shall be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled (subject to giving the other party full particulars of the circumstances in question and to using its best endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.
25. VAT
25.1 Save insofar as otherwise expressly provided all amounts stated in this agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefor.
26. Waiver
26.1 No forbearance, delay or indulgence by either party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right power or remedy herein conferred upon or reserved for either party is exclusive of any other right power or remedy available to that party and each such right power or remedy shall be cumulative.
27. Notices
27.1 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by facsimile transmission notice (such facsimile transmission notice to be confirmed by letter posted within 12 hours) or email to the address or facsimile number or email address as the case may be of the other party set out in this agreement (or such other address or facsimile number as may have been notified in writing) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon expiration of 48 hours after posting and (if sent by facsimile transmission) upon the expiration of 12 hours after dispatch, and if sent by email upon the emai delivery notice.
Notices to the Company: KnowledgeWire Systems Ltd
20 Mortlake High St
London SW14 8JN
Email address: request@knowledgewire.co.uk
Facsimile Number: +44 (0)20 3159 4276
Notices to the Licensee: spcecified by Licensee
Facsimile Number: spcecified by Licensee
Email address: spcecified by Licensee
Where a notice is deemed delivered hereunder on a day that is not a working day or after 5.30pm on a working day then it shall be deemed to have been delivered on the next working day.
28. Invalidity and severability
28.1 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
29. Entire agreement
29.1 This agreement, which expression for all purposes may include the Schedule and Ordering Supplement #1 supersedes all prior agreements arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.
30. Licensee's Warranty and Indemnity
30.1 The Licensee hereby warrants to the Company that the Licensee has not been induced to enter into this agreement by any prior representations, understandings or warranties, whether oral or in writing, except as specifically contained in this agreement and the Licensee hereby irrevocably and unconditionally waives any right it may have to claim damages for any misrepresentation not contained in this agreement or for breach of any warranty not contained herein (unless such misrepresentation or warranty was made fraudulently) and/or to rescind this agreement.
30.2 The Licensee hereby undertakes to indemnify the Company and keep the Company fully and effectively indemnified against any and all loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of the Licensee, its employees, agents or sub contractors.
Except in respect of injury to or death or any person the liability of the Licensee under this sub clause in respect of each event or series of connected events shall not exceed L10,000.
31. Assignment and sub licensing
31.1 The Licensee shall not be entitled to assign or otherwise transfer the License nor any rights and/or obligations under this agreement whether in whole or in part nor to sub License the use (whether in whole or in part) of the Licensed Program Materials.
32. Interpretation
In this agreement:
32.1 words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa.
32.2 any reference to a party in this agreement includes a reference to his successors in title and permitted assigns.
32.3 the headings to the clauses in this agreement are for ease of reference only and shall not affect the interpretation or construction of this agreement.
33. Law
33.1 This agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.
34. Disputes
34.1 Any dispute which may arise between the parties concerning this agreement shall be determined as follows:
34.1.1 If the dispute shall be of a technical nature concerning the interpretation of the Program Specification or relating to the functions or capabilities of the Licensed Programs or any similar or related matter then such dispute shall be referred for final settlement to an expert nominated jointly by the parties or, failing such nomination within 14 days after either party's request to the other therefor, nominated at the request of either party by the President from time to time of the British Computer Society. Such expert shall be deemed to act as an expert and not as an arbitrator. His decision shall (in the absence of clerical or manifest error) be final and binding on the parties and his fees for so acting shall be borne by the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees.
34.1.2 In any other case the dispute shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such purpose.