Active Dashboards licence agreement

IMPORTANT NOTICE: PLEASE READ CAREFULLY  BEFORE INSTALLING THE SOFTWARE: This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Dynistics Limited a company registered in England with number 3968449 whose registered office is at Blythe Valley Innovation Centre, Blythe Valley Park, Shirley, Solihull, West Midlands, B90 8AJ  (Licensor, us or we) for this Active Dashboards software product (Software), which includes computer software, the data supplied with it, the associated media, online and electronic documentation (Documentation).

BY INSTALLING THIS SOFTWARE AND CLICKING ON THE "I accept the agreement" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES.  IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW BY CLICKING ON THE "I do not accept the agreement" BUTTON BELOW. IN THIS CASE YOU MUST RETURN THE MEDIUM ON WHICH THE SOFTWARE IS STORED AND ALL ACCOMPANYING DOCUMENTATION TO US WITHIN 5 DAYS. IF YOU DO THIS YOUR LICENCE FEE WILL BE REFUNDED.

YOUR ATTENTION IS DRAWN TO CLAUSES 4.2 and 8.

1.                   Interpretation
1.1                The definitions and rules of interpretation in this clause apply in this Licence.
Annual Fee: the annual licence fee set out in the Proposal payable by the Licensee to the Licensor under clause 5.1.
Commencement Date: either the date that the Software is delivered to you by the Licensor or the date that the Software is installed on the Server whichever is the earlier.
Consultancy Fee: the consultancy fee set out in the Proposal (as amended pursuant to clause 3.1 below) payable by the Licensee to the Licensor under clause 5.1.
Consultancy Services: the services to be provided by the Licensor as set out in clause 3.1.

Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.

Licence Fee: the licence fee set out in the Proposal payable by the Licensee to the Licensor under clause 5.1.
Proposal: the document prepared by the Licensor and sent to the Licensee setting out the proposal to supply the Software and Documentation to the Licensee and provide the Consultancy Services.
Server: the Licensee’s server on which the Software will be installed as set out in the Proposal or as otherwise agreed in writing between the Licensor and the Licensee.
Support: means the Licensor’s support of the Software set out in the Proposal and clause 3.
Support Hours: means 9.30am to 5pm (GMT) on Working Days.

Working Day: means any day (other than a Saturday or Sunday) on which banks are ordinarily open for business in London.

1.2                The headings in this licence do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this licence.
1.3                Unless the context otherwise requires:
(a)           references to the Licensee and the Licensor include their permitted successors and assigns;
(b)           references to statutory provisions include those statutory provisions as amended or re-enacted; and
(c)            references to any gender include all genders.
1.4                In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in any document referred to in this Licence, the provision in the body of this licence shall take precedence.
1.5                Words in the singular include the plural and in the plural include the singular.

2.                   Grant and scope of licence
2.1                In consideration of the payment of the Licence Fee and the Annual Fee by you the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation in the UK on the terms of this Licence for the term set out in the Proposal.
2.2                You may:
(a)           use the Software for your internal business purposes only on the Server for the number of concurrent users set out in the Proposal as amended by agreement in writing between you and us;
(b)           make one copy of the Software for back-up purposes only, provided that this is necessary for the activities permitted by condition 4.1;
(c)            use any Documentation in support of the use permitted under condition 2.1 and make one copy of the Documentation as are reasonably necessary for its lawful use.

3.                   Consultancy Services and Support
3.1                In consideration of the Consultancy Fee the Licensor shall provide the services set out in the Proposal to:
(a)           configure the Software to operate as set out in the Proposal; and
(b)           provide training on the use and configuration of the Software as set out in the Proposal.
the Licensor’s obligation to provide the Consultancy Services and the amount of the Consultancy Fee is subject to the Licensee providing all necessary access to relevant hardware, software, office facilities and personnel. If such access is not provided to the Licensor on request the Licensor reserves the right to increase the Consultancy Fee by such amount as is necessary to take into account the Licensee’s failure and/or at its option to terminate this Licence.
3.2                During the continuance of this Licence the Licensor shall provide support to the Licensee in the use and operation of the Software (but not the interoperability of the Software with other software applications) as set out in clauses 3.2 to 3.5 below during the Support Hours and will classify incidents in accordance with the following criteria:-
            Priority A

i)          Inoperable, or service so reduced as to be unusable

ii)        Time critical job stopped

iii)      Data corruption problems that cannot be contained and could lead to a significant loss of data with no feasible work-around

            Priority B

i)        Important job stopped, or time critical job at risk

ii)      Important component unusable

iii)    Data corruption problems that cannot be contained

iv)    Malfunction having frequent and major impact

       Priority C

i)         Non urgent or intermittent incident causing inconvenience

ii)         An incident which has no current impact, or for which a locally identified cure or circumvention is available, that is passed on for information only to ensure registration of the incident and clearance as appropriate.

3.3                The Licensor shall use its reasonable endeavours to respond promptly and carry out corrective action for the appropriate classification but no warranty is given in respect of correction times or the success of such actions and time shall not be of the essence. Nothing in this Licence shall oblige the Licensor to provide any on site support to the Licensee. Support provided to the Licensee at the request of the Licensee outside of the agreed parameters shall be paid for by the Licensee at the Licensor’s daily rate from time to time.
3.4                The Licensee shall upon the reasonable request of the Licensor supply or make available to the Licensee sufficient data to enable the Company to reproduce the reported incident and shall make available to the Licensor a remote link, using communications software agreed between the parties and permit remote access and file transfer to and from the Software. Any delay by the Licensee in providing remote access or in responding to the reasonable requests for data or information by the Licensor or time spent by the Licensor investigating inaccurate, incomplete or misleading information shall be discounted when considering the time to respond.
3.5                The Licensor shall not be obliged under the terms of this Licence to provide Support where:-
i)                    the Licensee has not complied with its obligations in clause 4.1 below;

ii)                  the incident has been caused by misuse, incorrect use of or damage to the Software whether by malicious intent or negligence on the part of the Licensee or its employees or agents or otherwise;

iii)                the Software has been used for purposes other than those for which it was designed without the prior written agreement of the Licensor;

iv)                the incident has been caused by problems with third party software;

v)                  the incident has been caused by a failure to maintain the necessary environmental conditions for use of the Software;

vi)                the incident has been caused by relocation or installation of the Software by any person other than the Licensor or a person acting under the Licensor’s instructions

vii)              the incident has been caused by problems with or failures in any hardware or middleware.

Any support provided by the Licensor in respect of any of the excluded elements above shall be paid for by the Licensee at the Licensor’s daily rate from time to time.

4.                   Licensee's undertakings
4.1                Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(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 except where the Licensor has previously agreed to such combination or incorporation in writing;
(d)           not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(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 substantially 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 your 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 and install all “patches”,  corrections of errors and annual subscription files provided by the Licensor under the terms of this Licence immediately on receipt;
(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 person other than your employees without prior written consent from the Licensor.
4.2                You must permit the Licensor and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.

5.                   Fees
5.1                You shall pay to the Licensor the Licence Fee and the Consultancy Fee prior to the Commencement Date and in addition shall pay the Annual Fee on each anniversary of the Commencement Date or at such other frequency as is set out in the Proposal or as is otherwise agreed between us in writing. All sums payable under this Licence are exclusive of VAT, for which you shall be responsible.
5.2                If you fail to pay an Annual Fee by the due date set out in clause 5.1 above the Licence to use the Software and Documentation in clause 2.1 above will automatically terminate and you acknowledge and agree that the Software has had built into it a mechanism where is will automatically cease to operate. We will have no liability to you in the event the Software so ceases to operate and you are caused difficulties as a consequence or result thereof.
5.3                If you fail to pay any amount payable by you under this Licence, the Licensor shall be entitled (but not obliged) to charge interest on the overdue amount, payable by you forthwith on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of 2% per annum above the base rate for the time being of Lloyds TSB. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

6.                   Intellectual property rights
6.1                You acknowledge that all Intellectual Property Rights in the Software and the Documentation throughout the world belong to the Licensor or are licensed to the Licensor by the owner of those rights, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
6.2                You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
6.3                The integrity of this Software is protected by technical protection measures (TPM) so that the Intellectual Property Rights, including copyright, in the Software of the Licensor are not misappropriated.  You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.

7.                   Warranty
7.1                The Licensor warrants that:
(a)           the Consultancy Services and Support will be carried out with reasonable skill and care;
(b)           the 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 Licensor will replace it free of charge if you return it to the Licensor with (so far as you are able) a documented example of such defect or error;
(c)            during the Warranty Period, the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation, and the Documentation correctly describes the operation of the Software in all material respects;
(d)           it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice.
7.2                You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
7.3                You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
7.4                If, within the Warranty Period, you notify the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Licence, the Licensor will, at its sole option, repair or replace the Software or terminate this Licence immediately by notice in writing to you and refund any of the Licence Fee paid by you as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof, provided that you make available all information that may be necessary to assist the Licensor in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
7.5                The Licensor's obligation under condition 7.4 is subject to compliance by you with the terms of condition 4.1(g)

8.                   Licensor's liability
8.1                Nothing in this Licence shall exclude or in any way limit the Licensor's liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
8.2                Subject to condition 8.1 the Licensor shall not be liable under or in connection with this Licence or any collateral contract 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 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 8.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of condition 7 or any other claims for direct financial loss that are not excluded by any of categories (a) to (h) inclusive of this condition 8.2.

8.3                Subject to condition 8.1 and condition 8.2, the Licensor's maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to 125% of the total of the Licence Fee and the Annual Fees paid by the Licensee under this Licence.
8.4                Subject to condition 8.1, condition 8.2 and condition 8.3, the Licensor's liability for infringement of third party Intellectual Property Rights shall be limited to breaches of rights subsisting in the UK.
8.5                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 and the provision of the Consultancy Services and the Support 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.

9.                   Termination
9.1                The Licensor may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so and/or in the circumstances set out in clause 3.1 above provided always that the Licensor shall not be required to serve notice on you in the event of an automatic termination of this Licence pursuant to clause 5.2 above.
9.2                Upon termination for any reason:
(a)           all rights granted to you under this Licence shall cease;
(b)           you must cease all activities authorised by this Licence;
(c)            you must immediately pay to the Licensor any sums due to the Licensor under this Licence; and
(d)           you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.

10.                Transfer of rights and obligations
10.1            This Licence is binding on you and us and on our respective successors and assigns.
10.2            You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
10.3            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.

11.                Notices
All notices given by you to the Licensor must be given to Dynistics Limited at its registered office address as registered with Companies House from time to time. The Licensor may give notice to you at either the e-mail or postal address you provided to it when purchasing the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

12.                Events outside the Licensor's control
12.1            The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Licence that is caused by an event outside his reasonable control (Force Majeure Event).
12.2            A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(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.
12.3            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. We will use our reasonable endeavours to bring theForce Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.

13.                Waiver and amendments
13.1            If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
13.2            A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
13.3            No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
13.4            Any amendment, waiver or variation of this Licence or the Proposal shall not be binding on you or us unless set out in writing and signed by or on behalf of each of you and us.

14.                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.

15.                Entire agreement
15.1            This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
15.2            We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
15.3            Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Licence.

16.                Third party rights
No term of this Licence is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Licence.

17.                Law and jurisdiction
This Licence is governed by English law. Any dispute arising from, or related to, any term of this Licence shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.