Last updated: 5th October 2009

IMPORTANT NOTICE:

PLEASE READ THIS LICENCE CAREFULLY BEFORE INSTALLING THE SOFTWARE:

You agree in your capacity as an individual, that you are an authorised agent, for the purposes of installing and activating this software, for the organisation on whose computer this software is being installed. You also confirm that this organisation has paid the licence fee for this software (the organisation being referred to as the “Licensee”; the software being referred to as the “Software”; and the terms and conditions contained within this document, which form the licence agreement, being known as the “Licence”).

If the Software is being installed and/or activated by you as an Authorised Reseller on the Licensee’s behalf, then the Authorised Reseller and the Licensee each confirms that the Licensee has appointed the Authorised Reseller as its agent to confirm acceptance of this Licence on its behalf, and the Licensee hereby agrees to be bound by this Licence.

The Licensee acknowledges that the Licence is a contract between the Licensee and us (Dynistics Limited, registered in England and Wales with company number 03968449 whose registered office is at Blythe Valley Innovation Centre, Blythe Valley Park, Shirley, Solihull, West Midlands B90, 8AJ, United Kingdom (the “Licensor”; expressions such as “we”, “our” and “us” therefore refer to the Licensor)), governing the Licensee’s and its employees use of the Software and its associated documentation (such associated documentation is known as the “Documentation”; the Software and Documentation are collectively referred to as the “Software Materials”).

The Software Materials are licensed to the Licensee pursuant to the Licence. The Software Materials are, and remain, our property and the property of our third party licensors.

Note: This paragraph applies where the Licensee or the Authorised Reseller on the Licensee’s behalf, is attempting to install Software Materials which have been made available to the Licensee for installation from CD or DVD media: The Licensee must communicate any refusal of the Licensee to accept the Agreement, to the Supplier (the “Supplier” means the Licensor, or if the Licensee is seeking access to the Software Materials through an Authorised Reseller, then it means the Authorised Reseller) within 7 days of the Supplier providing the Licensee with a CD or DVD containing the Software Materials, and the Licensee must within this timeframe also return to the Supplier, at the Licensee’s cost, all information, software, documentation and materials which the Supplier has made available to the Licensee. If the Licensee complies with this 7 day time period, and provided that the Licensee has neither installed, activated nor used the respective Software Materials, the Licensee may request a full refund of the payment which the Licensee has made to the Supplier in relation to the Software Materials which are not being installed (for the avoidance of doubt, the Licensee agrees that it must seek such refund directly from the Authorised Reseller and not the Licensor, if the payment has been made by the Licensee to the Authorised Reseller rather than to the Licensor). If the Licensee fails to comply with this timescale, the Licensee will have been deemed to have accepted the provisions contained within this Agreement, and the Licensee agrees to comply with them in installing, activating, copying, using the Software Materials.

By in any way installing, activating, copying or otherwise using the Software Materials, or any part of them, the Licensee agrees to be bound by the terms of this Licence. If the Licensee does not agree to the terms of this Licence, then we are unwilling to license the Software Materials to the Licensee, and you must discontinue the installation of the Software Materials now, by selecting the “Do not Accept” option below, as you may not then install, activate, copy or in any way use the Software Materials, or any part of them.

1.                   Grant and scope of licence
1.1                In consideration of the Licensee agreeing to abide by the terms of this Licence, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence.
1.2                The Licensee may:
(a)            install and use the Software for its internal business purposes only (and therefore not for the benefit of any third parties), either (as agreed between the parties)
(i)              on one CPU if the Licence is a single-user licence or the Software is for single use; or
(ii)            if the Licence is a multi-user or network licence, for the number of concurrent users agreed between the Licensee and us;
(b)            make 1 copy of the Software for back-up purposes only, provided that this is necessary for the activities permitted by condition 2.1;
(c)            download and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be freely provided by the Licensor from time to time (any chargeable updates or upgrades will only be provided to the Licensee where the Licensee has a separate support contract in force with the Supplier for such updates or upgrades). For the avoidance of doubt, any such updates or upgrades will only be those software versions which are generally made available by the Licensor, and such software will not be any form of bespoke software produced specifically for the Licensee. Any updates and upgrades will also be subject to the same restrictions and obligations that the Licensee accepts in respect of the Software pursuant to this Licence, unless the Licensor issues additional or replacement licence terms in respect of such updates or upgrades;
(d)            use any Documentation in support of the use permitted under condition 1.1.

2.                   Licensee's undertakings
2.1                Except as expressly set out in this Licence or as permitted by any local law, the Licensee undertakes:
(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;
(b)            not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(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;
(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 (provided that such information has been requested from the Licensor and it has not been forthcoming within a reasonable period of time following a comprehensive explanation by the Licensee as to why it requires such information), and provided that the information obtained by the Licensee during such activities:
(i)              is used only for the purpose of achieving inter-operability of the Software with another software program;
(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
(iii)           is not used to create any software which is materially similar to the Software;
(e)            to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f)             to supervise and control use of the Software and ensure that the Software is used by the Licensee’s employees and representatives in accordance with the terms of this Licence;
(g)            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;
(h)            to include the copyright notice of the Licensor on all entire and partial copies of the Software in any form;
(i)              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 party (other than the Licensee’s employees) without the prior written consent from the Licensor;
(j)             not to use the Software via any communications network or by means of remote access;
(k)            only to use the Software in accordance with such software and hardware that is described in the Licensor’s published literature as the specification requirements for such Software;
(l)              to virus scan the Software both before, during and after installation of the Software, and to maintain in force reasonable anti-virus scanning measures to guard against any virus issues;
(m)          to use the Software for displaying business and financial data relating to company performance only;
(n)            not to use the Software for any mission critical purpose, nor to use the Software as the sole basis for any decision making.
2.2                The Licensee agrees to 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 the Licensee is complying with the terms of this Licence.
2.3                The Licensee agrees that it may only use licences designated as “Developer Server Licences” by the Licensor, its Authorised Resellers or distributors, in the following manner:
(a)            to develop, configure or test developments or configurations (but not for trialling, evaluating or any other activity in relation to the Software) in respect of the Software in a non-live environment on a designated server of the Licensee, with the intention that such developments or configurations will subsequently be reflected in the live environment pursuant to the other user licences for the Software that the Licensee has.
2.4                The Licensee agrees that it may only use licences designated as “Evaluation Licences” or “Trial Licences” by the Licensor, its Authorised Resellers or distributors, in the following manner (for the avoidance of doubt, if any Software licence is provided by any of the afore-mentioned parties without charge to the Licensee, then such Software licence will also be deemed to be designated as an “Evaluation Licence”):
(a)            to test and evaluate the functionality of the Software in a non-live environment, to help it determine whether it wishes to purchase a licence for commercial use of the Software;
(b)            for no commercial or business use whatsoever;
(c)            in no manner which would give rise to any liability to the Licensee, the Licensor or any other third party.

3.                   Intellectual property rights
3.1                The Licensee acknowledges that all intellectual property rights in the Software and the Documentation throughout the world belong to the Licensor and its third party licensors, and that rights in the Software are licensed (not sold) to the Licensee, and that the Licensee has 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.
3.2                The Licensee acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.

4.                   Warranty
4.1                The Licensor warrants that:
(a)            the CD or DVD medium on which the Software is stored and distributed is (at the time it is supplied), and will be for the period of 90 days after that time (Warranty Period), free from defects in design, material and workmanship under normal use.  If a defect in the medium occurs during the Warranty Period, the Supplier will replace it free of charge if the Licensee returns it to the Supplier with proof of purchase and (so far as the Licensee is able) a documented example of such defect or error;
(b)            during the Warranty Period, the Software will, when properly used, perform materially in accordance with the functions described in the Documentation, and the Documentation describes the operation of the Software in all material respects;
4.2                The Licensee acknowledges that the Software has not been developed to meet the Licensee’s individual requirements and that it is therefore the Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet the Licensee’s requirements.
4.3                The Licensee acknowledges that the Software may not be free of bugs or errors and the Licensee agrees that the existence of any minor errors shall not constitute a breach of this Licence.
4.4                If, within the Warranty Period, the Licensee notifies the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform materially in accordance with the Documentation, and such defect or fault does not result from the Licensee 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 the Licensee makes 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.
4.5                The Licensor's obligation under condition 4.4 is subject to compliance by the Licensee with the terms of condition 2.1(g)

5.                   Licensor's liability
5.1                Nothing in this Licence shall exclude or in any way limit the Licensor's liability for fraud, fraudulent misrepresentation, or for death or personal injury, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
5.2                Subject to condition 5.1 the Licensor shall not be liable under or in connection with this Licence or any collateral contract, whether such loss arises under contract, statute, tort (including without limitation negligence or otherwise) for:
(a)            loss of income;
(b)            loss of business profits or contracts;
(c)            business interruption;
(d)            loss of the use of money or anticipated savings;
(e)            loss of information;
(f)             loss of opportunity, goodwill or reputation;
(g)            loss of, damage to or corruption of data; or
(h)            any indirect, incidental, special or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 5.2 shall not prevent claims 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. For the avoidance of doubt, the exclusions in conditions 5.2(a) to 5.2(g) inclusive, apply whether the losses are direct, indirect, incidental, consequential or special losses.

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 arising under contract, statute, tort (including without limitation negligence) or otherwise, shall be limited to a sum equal to 100% of the licence fee paid for the Software Materials by the Licensee to the Supplier.
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.
5.5                This Licence sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software 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 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.

6.                   Termination
6.1                The Licensor may terminate this Licence immediately by written notice if:
(a)            the Licensee commits a breach of this Licence; or
(b)            the Licensee shall present a petition or have a bona fide petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts; or
(c)            the Licensee suffers or undergoes any procedure analogous to any of those specified in condition 6.1(b);  or
(d)            the Licensee suffers or undergoes any procedure available against or to an insolvent debtor or available to the creditors of such a debtor in the country in which the Licensee is constituted, established or domiciled.
6.2                Upon termination for any reason:
(a)            all rights granted to the Licensee under this Licence shall cease;
(b)            the Licensee must cease all activities authorised by this Licence;
(c)            the Licensee must immediately pay to the Supplier any sums due to the Supplier under this Licence; and
(d)            the Licensee must immediately delete or remove the Software from all computer equipment in its possession and immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that the Licensee has done so.

7.                   Transfer of rights and obligations
7.1                This Licence is binding on the Licensee and us and on our respective successors and assigns.
7.2                The Licensee may not transfer, assign, charge or otherwise dispose of this Licence, or any of its rights or obligations arising under it, without our prior written consent.
7.3                The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.

8.                   Notices
All notices from the Licensee must be sent to the Licensor at its address as stated above. The Licensor may communicate updated notice address details to the Licensee, either by direct communication with the Licensee or via the Licensor’s website. Notice will only be successfully served by the Licensee where it is either expressly acknowledged in writing by the Licensor, or where the notice has been provided by tracked courier delivery and the courier report shows a signed receipt of the notice by the Licensor.

9.                   Events outside the Licensor's control
9.1                The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Licence that is caused by an event outside his reasonable control (Force Majeure Event).
9.2                A Force Majeure Event includes without limitation, any act, event, non-happening, omission or accident beyond the Licensor’s reasonable control, and includes in particular (but without limitation) the following:
(a)            strikes, lock-outs or other industrial action;
(b)            civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c)            fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d)            impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e)            impossibility of the use of public or private telecommunications networks;
(f)             the acts, decrees, legislation, regulations or restrictions of any government;
(g)            failure of supplies: of power, fuel, transport, equipment, raw materials or other goods or services;
(h)            viruses, spyware or other malware.
9.3                The Licensor's performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and it will have an extension of time for performance for the duration of that period.

10.                Waiver
10.1            If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of the Licensee’s 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 the Licensee from compliance with such obligations.
10.2            A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
10.3            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 the Licensee in writing.

11.                Severability
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.

12.                Entire agreement
12.1            This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement (the “Subject Matter”) and supersedes and replaces all other written and oral communications between the parties relating to the Subject Matter.  Except for the express provisions in this Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law. The parties hereby confirm that they have not relied upon any representations, communications or other matters which have not been expressly stated in this Agreement, whether as an inducement to enter into this Agreement or otherwise. Notwithstanding any provision to the contrary, nothing in this Agreement limits or excludes either party’s liability for fraudulent misrepresentations.

13.                Law and jurisdiction
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.