SOFTWARE LICENCE – TERMS AND CONDITIONS

The software that you the Licensee are intending to install (the “Software”) is the subject of copyright protection and is not freeware or shareware. Technology Design Limited of Wharton Park House, Nat Lane, Winsford, Cheshire CW7 3BS (” Technology Design”) owns the copyright in the Software. You are not permitted to copy or run it unless you have been granted a license to do so by Technology Design.

Technology Design is now offering you a license (the “License”) that allows you to use the Software, provided you pay all the necessary fees to Technology Design and obtain the necessary information from them.

The terms and conditions of the License are set out below. By initiating the install procedure you are agreeing to accept the License on those terms, whether or not you have actually read them. If you do not wish to be bound by those terms, do not install the Software.

TERMS AND CONDITIONS

1. DEFINITIONS

The following definitions apply to these Conditions:

2. LICENCE

2.1 In consideration of the payment by the Licensee to Technology Design of the License Fee in accordance with Condition 4, Technology Design hereby grants to the Licensee a non-exclusive, non-transferable, non- sublicensable, limited license to install and use the Software in accordance with and subject to these Conditions and the User Manual. Such license is an “online and offline” license. This means that it permits use of the Software on the device on which it is supplied plus one single personal computer. Technology Design also hereby licenses the Licensee to use the User Manual subject to these Conditions. Licensee’s right to use the Software is limited to those rights expressly set out in these Conditions. For greater certainty, Licensee shall have no right of access to or use of the source code of the Software.

2.2 The Licensee must contact Technology Design to obtain the License Number that is needed for the Licensee to install the Software on the notebook computer referred to in Condition 2.1. If at any time during the term of the License the Licensee wishes to install the Software on an alternative device instead of such notebook computer, the Licensee must contact Technology Design for a new License Number. Technology Design shall have discretion as to whether or not to issue a new License Number and permit the installation of the Software on an alternative device.

2.3 If at any time the Licensee installs and/or uses the Software on any equipment other than that referred to in Condition 2.1 without the prior written consent of Technology Design, this shall constitute a material breach of the License and Technology Design shall have the right to terminate the License forthwith unless the Licensee pays to Technology Design forthwith on demand such additional License Fee (calculated based on Technology Design’s then standard license fees) as shall be notified by Technology Design to the Licensee in respect of such use.

3. TERM

The License is effective from the Commencement Date and shall continue until terminated by Technology Design or the Licensee pursuant to Condition 9.

4. LICENCE FEE

4.1 The License Fee is payable by the Licensee to Technology Design on the Commencement Date

4.2 All applicable local, state, provincial and federal VAT and other sales tax arising in respect of the License Fee and other applicable taxes and duties exigible on the transaction contemplated by these Conditions shall be paid to Technology Design by the Licensee in addition to any other consideration payable therefore.

4.3 The License Fee shall be payable by the Licensee without any set-off, deduction or any other form of withholding unless otherwise required by applicable law.

5. LICENSEE’S OBLIGATIONS

The Licensee shall:

5.1 not under any circumstances copy, transmit or reveal or permit or suffer to be copied, transmitted or otherwise revealed the License Number to any person other than an authorized representative of the Licensee to whom the number needs to be revealed to permit the Licensee to make Permitted Use of the Software;

5.2 not use or permit or suffer the Software nor the User Manual to be used for any purpose other than the Permitted Use, and whenever it becomes aware that this restriction has or may have been breached it shall promptly inform Technology Design of such breach in reasonable detail and in writing;

5.3 be responsible for ensuring that the configuration of hardware, firmware and software on, under or with which the Software is run is sufficient in functionality and performance for the Permitted Use of the Software and shall ensure that all the normal procedures and precautions relevant to a computerised system, including but without limitation those relating to physical and electronic security, confidentiality and the taking of frequent regular backups are observed and performed;

5.4 ensure that the Software is correctly used and that its employees are properly trained to use the same to trace and correct running faults to restart and recover after a fault and to operate suitable checks for accuracy of input and output;

5.5 check the output of the Software to ensure that the Software is operating correctly;

5.6 not make any copies of the Software in whole or in part, and not alter or circumvent the copy or use protection mechanisms in the Software;

5.7 reproduce on any copy (whether in machine or human readable form) of the User Manual Technology Design’s copyright and trade mark notices and shall not remove or alter any copyright, trade mark or other proprietary notice or mark on the User Manual and the copyright in the User Manual shall remain the property of Technology Design;

5.8 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and Intellectual Property Rights of Technology Design in the Software and the User Manual;

5.9 notify Technology Design immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Software, Licence Number or User Manual by any third party;

5.10 not translate, adapt, modify, disassemble, decompile, reverse engineer or create derivative works from the Software except as permitted (if at all) by Section 50B of the Copyright Designs and Patents Act 1988, or merge all or part of the Software with another program;

5.11 take all reasonable precautions to prevent any person from using the Software in any way that would constitute a breach of these Conditions

5.12 not assign, transfer, sell, lease, rent, charge, or hold the Software or the User Manual on trust for any third party or otherwise deal in or encumber the Software or the User Manual or make them available to any third party; and

5.13 enter into an agreement with Technology Design for the support of the Software and the device(s) on and/or with which the Software is supplied by Technology Design. Such support shall be provided free of charge for the period of one year from the Commencement Date. Following the expiry of such period, if the Licensee wishes Technology Design to continue to provide the support, the Licensee shall pay to Technology Design the applicable annual fee designated by Technology Design.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 All Intellectual Property Rights in the Software and the User Manual are and shall remain the exclusive property of Technology Design and are designated and acknowledged by the Licensee as confidential.

6.2 In the event a third party asserts or alleges that the Permitted Use of the Software by the Licensee infringes any of its Intellectual Property Rights (an “Infringement Claim”) Technology Design shall be entitled at its own expense and option either to:

6.2.1 procure the right for the Licensee to continue using the Software; or

6.2.2 make such alterations, modifications or adjustments to the Software so that it becomes non-infringing without incurring a material diminution in performance or functionality from the Software specification; or

6.2.3 replace the Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or functionality from the Software specification.

6.3 Condition 6.2 sets forth the Licensee’s sole and exclusive remedy, and Technology Design’s sole and exclusive obligation in the event of any Infringement Claim.

7. WARRANTY

7.1 Technology Design warrants that its title to and property in the Software is free and unencumbered and that it has the right, power and authority to license the same upon these Conditions.

7.2 Subject to the other provisions of these Conditions Technology Design warrants that for the period of three months from the Commencement Date the Software will operate substantially in accordance with Technology Design’s written specification therefore set out in the User Manual at the Commencement Date.

7.3 Technology Design does not warrant that the Software does not contain bugs, errors, or defects and in the event that the Licensee reports a defect to Technology Design the Licensee hereby agrees to afford Technology Design not less than 30 days in which to remedy any such bugs, errors, or defects and no such bug, error, or defect shall entitle the Licensee to repudiate the Licence.

7.4 Technology Design makes no warranty and the Licensee acknowledges that no warranty is given expressly or impliedly that the Software will meet the Licensee’s requirements or that the operation of the Software will be uninterrupted or error free.

7.5 The Licensee acknowledges that software in general is not free of errors and agrees that the existence of defects in the Software does not constitute a failure of consideration by Technology Design and does not of itself constitute a breach of warranty or of the License.

7.6 The Licensee accepts that the Software was not designed and produced to its individual requirements and that it was responsible for its selection.

7.7 The Software is a tool to aid the Licensee, but should not be relied on in a business critical or safety critical manner. Technology Design will not be under any liability if the Software is used in a manner in breach of these Conditions and/or the User Manual.

7.8 The Licensee acknowledges and agrees that the Licensee is responsible for checking the accuracy of the data that is collected using the Software. Accordingly, Technology Design shall have no liability for any errors in or omissions from such data.

7.9 Subject to the foregoing, all conditions, warranties, terms and undertakings in respect of the Software, express or implied, arising by statute or otherwise in law or equity or by custom or from a course of dealing or usage of trade, are hereby excluded to the fullest extent permitted by law, including without limitation any implied warranties or conditions of title, non-infringement, merchantable quality and fitness for a particular purpose, in connection with the Software.

8 LIMITATION OF LIABILITY

8.1 Technology Design shall not be liable to the Licensee in respect of the Software or under or pursuant to these Conditions, for any indirect, punitive, exemplary, special, incidental or consequential damages (including loss of profits, loss of data, goodwill or turnover or loss or damage suffered by the Licensee as a result of an action brought by a third party), however arising, whether based in contract, tort (including negligence), statute or otherwise, even if such loss was reasonably foreseeable or if Technology Design has been previously advised of the possibility of such damage.

8.2 Notwithstanding any other provisions of these Conditions, nothing in these Conditions shall exclude or limit Technology Design’s liability for: (i) death or personal injury resulting from that Technology Design’s negligence; or (ii) any other acts or omissions of Technology Design for which the governing law prohibits the exclusion or limitation of liability.

8.3 Subject to Condition 8.2, Technology Design’s total aggregate liability for any and all damages, losses or liabilities arising under these Conditions, or from any Software, or whether arising in tort (including negligence) or restitution or for breach of statutory duty or misrepresentation, or otherwise shall be limited to the Licensee Fee paid to Technology Design for the Software giving rise to the liability.

8.4 Without prejudice to the generality of any other provision of these Conditions and subject to Condition 8.2, Technology Design shall not be liable for any damage or losses or for any additional damage or losses arising from the Licensee’s use of the Software otherwise than in accordance with the Permitted Use nor for any delays in meeting its obligations due to causes beyond its reasonable control.

8.5 Subject to Condition 8.2, Technology Design shall have no liability to the Licensee for any loss or damage incurred after the Licensee became or should have become aware of a bug or error in the Software. The Licensee shall comply with any instructions issued by Technology Design to suspend the use of the Software while any bug or error is remedied.

8.6 The Licensee declares and acknowledges that it has considered the provisions of this Condition 8 in detail including but without limitation the limitations on liability contained in Conditions 8.1, 8.3, 8.4 and 8.5 and considers them reasonable in the circumstances having taken into account among other factors the subject matter of the License and the level of the License Fee and having obtained or had the opportunity to obtain independent legal advice on the same, and further acknowledges that such provisions constitute an essential part of these Conditions.

9. TERMINATION

9.1 Technology Design may terminate these Conditions for cause immediately upon notice to the Licensee in the event any of the following occurs:

(a) a breach by the Licensee of one of its obligations under these Conditions and where such breach is capable of being remedied, such breach is not remedied within ten (10) days from receipt by the Licensee of a written notice specifying the breach; or
(b) an interim order is applied for or made, or a voluntary arrangement approved, or a petition for a bankruptcy order is presented or a bankruptcy order is made against the Licensee, or a receiver or trustee in bankruptcy is appointed over or in respect of the Licensee or a voluntary arrangement is proposed or approved or an administration order is made, or a receiver or administrative receiver is appointed of any of the Licensee’s assets or undertaking, or a winding-up resolution or petition is passed or presented (otherwise than for the purposes of reconstruction or amalgamation) or any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order, or other similar or equivalent action is taken against or by the Licensee by reason of its insolvency or in consequence of debt.

9.2 The Licensee declares and acknowledges that whenever the License terminates then the Licensee must immediately cease use of the Software. The Licensee shall within five days following termination of the License delete the Software from all equipment on which it is installed and shall destroy all copies of the User Manual in the Licensee’s possession or control and shall certify to Technology Design in writing signed by a duly authorised officer of the Licensee that it has complied with its obligations under this Condition 9.2.

9.3 The obligations on the Licensee contained in these Conditions relating to confidentiality of the License Number, the Software, the User Manual and any confidential information of Technology Design , together with the provisions of Conditions 6.1, 8.1 – 8.6, shall not be affected or prejudiced by the termination of the License and shall survive such termination.

10. GENERAL

10.1 If any Condition, Sub-Condition or any other provision of these Conditions is invalid under any applicable statute or rule of law such provision shall to that extent be deemed omitted and all provisions not affected by such invalidity shall remain in full force and effect.

10.2 Any failure by Technology Design to enforce any provision of these Conditions shall not be construed as a waiver of such provision or of a right thereafter to enforce the same.

10.3 The Licensee acknowledges that in entering into the Licence it has not relied on any warranty, representation, undertaking or agreement other than those contained or referred to in these Conditions. The Licensee waives any right or remedy it may have to claim damages or rescission for any misrepresentation in respect of any representation not contained in these Conditions or for breach of any warranty not contained in these Conditions and acknowledges that its only remedies against Technology Design are for breach of contract and subject to these Conditions provided always that nothing in this Condition 10.3 shall exclude or limit Technology Design’s liability to the Licensee in respect of any fraudulent misrepresentation or warranty fraudulently given by Technology Design and upon which the Licensee can prove it has placed reliance. Subject to the foregoing, these Conditions and the documents referred to herein constitute the entire agreement and understanding between the parties with respect to all the matters which are referred to in these Conditions.

10.4 The License, these Conditions and all terms and provisions thereof and all questions of construction validity and performance hereunder shall be governed by laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales, save that Technology Design shall have the right to commence any proceedings, suit and/or actions or to seek any equitable remedy in any legal jurisdiction in order to assert, defend and enforce its rights, obligations and/or remedies whether under the License or otherwise.

10.5 The Licensee shall not be entitled to assign, sub-license, delegate nor hold for the benefit of any other person or otherwise transfer the License nor any of its rights or obligations hereunder nor sub-license or permit or suffer the use (in whole or in part) of the Software without the prior written consent of Technology Design.

10.6 Notwithstanding anything to the contrary contained in these Conditions the parties agree and intend that the License shall not create any rights enforceable by any person not a party to it.

10.7 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

10.8 Any reference to the masculine gender includes the feminine and neuter gender and vice versa.

10.9 References to persons in these Conditions can include companies, associations, partnerships and all other legal entities or groups of legal entities.

10.10 The headings in these Conditions are included for convenience and shall not affect the meaning of these Conditions.

10.11 All notices to be given by either party to the other under these Conditions shall be given by email. Notices to Technology Design shall be sent to tdsales@technologydesign.com and notices to the Licensee shall be sent to the email address notified by the Licensee to Technology Design from time to time. All notices shall be confirmed by post to the address notified by each party to the other party from time to time. Each party is responsible for informing the other party of any changes to their email and/or postal address.

10.12 The invalidity or unenforceability of any provision of these Conditions or any covenant herein contained shall not affect the validity or enforceability of any provisions or covenant hereof or herein contained and any such invalid provision or covenants shall be deemed to be severable.