End User License Agreement
The Program (the “Program”) installed on the hardware accompanying this license is licensed solely to the named entity identified in Ipsotek’s business records (the “Licensee”) subject to the terms of this License, unless such terms are expressly and unambiguously amended by a separate written license agreement between Licensee and Ipsotek. Licensee is deemed to accept these terms by use of the Program or by signing this license agreement. If Licensee has not signed this agreement and uses the Program but does not agree with these terms, Licensee must within five business days after receipt of the Program return the Program to Ipsotek at Tuition House, 27-37 St George’s Road, Wimbledon, London SW19 4EU (“Ipsotek”).
THIS IS A LICENSE AND NOT A SALE
1.1 Subject to the terms and conditions of this License Agreement (“License”), Ipsotek grants solely for use by the entity of record in Ipsotek’s business records a non-exclusive, non-transferable license to use the Program solely for its own internal business purposes and solely in accordance with its specifications.
1.2 All proprietary rights and trade secrets in the Program, and all copies (in whole or part) shall be the exclusive property of Ipsotek (and its licensors), and are protected by laws and international treaty provisions. Licensee shall have no right, title, or interest therein except for the rights expressly granted under this License.
1.3 This License may not be assigned, sub-licensed or otherwise transferred or used for the benefit of third parties without the prior written consent of Ipsotek.
1.4 Licensee may not use, copy, alter, merge, adapt, modify, rent, or lease the Program or any copy thereof, in whole or in part, except as expressly provided in this license or under applicable statutes. Except to the extent applicable statutory law specifically prohibits such restrictions, Licensee shall not reverse engineer or decompile the Program for any reason. Neither Licensee nor its personnel who have access to the Program may use the Programs to design software with similar or competitive functionality for distribution to third parties.
2. License Fees
Licensee shall pay the non-refundable license fees for the Programs as set out in the applicable invoice. Upon payment of the applicable license fees, Ipsotek will enable the Program and Licensee may use the Programs as set out herein.
3.1 The Program contains certain information that is confidential and of substantial value to Ipsotek. Except as
expressly permitted herein, Licensee shall not use or disclose said confidential information, or cause it to be disclosed, to any third party.
3.2 No benchmark results nor results of any functional testing or evaluation of the Program shall be disclosed to any third party or used for any purpose other than to facilitate Licensee’s internal use of the Program.
4. Limited Warranty and Disclaimer
4.1 Ipsotek warrants that the Program when used in accordance with the terms of this License will operate substantially as
set forth in its specifications for a period of one year following delivery of the Program to Licensee.
4.2 Ipsotek warrants that prior to delivery of the Program to Licensee, Ipsotek has used commercially reasonable
efforts to prevent the Programs from being infected with, and any modified or enhanced versions of the Programs prepared by, or at the direction of, Ipsotek from being infected with, any “worms”, “viruses”, “Trojan Horses”, “protect codes”, “data destruct keys” or other programs or programming devices that might be used to access, modify, delete or damage the Programs, or other software, computer hardware or data of Licensee.
4.3 Licensee’s sole and exclusive remedy for breach of any of the above warranties shall be, at Ipsotek’s option, the repair or replacement of the Program or the media.
4.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 AND NOTWITHSTANDING ANY OTHER TERMS IN THIS LICENSE, IPSOTEK MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PROGRAMS TO BE SUPPLIED BY IPSOTEK, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IPSOTEK DOES NOT WARRANT THAT ANY PROGRAMS WILL BE ERROR-FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN ANY PROGRAMS CAN BE CORRECTED.
5. Limitation on Liability
IN NO EVENT SHALL IPSOTEK BE LIABLE FOR ANY LOSS OF PROFITS, USE, BUSINESS, DATA OR INFORMATION, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF ANTICIPATED SAVINGS OR LOST DATA, EVEN IF IPSOTEK HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY AND ALL CLAIMS BY ANY THIRD PARTIES. THE AGGREGATE LIABILITY OF IPSOTEK HEREUNDER WHETHER IN CONTRACT OR IN TORT SHALL IN NO EVENT EXCEED THE FEES PAID BY LICENSEE OVER THE PRECEDING TWELVE (12) MONTHS.
6.1 Ipsotek shall indemnify Licensee for any claim, demand or cause of action by a third party (“Demand”) to the extent that it is based upon a claim that the Programs infringe any U.K. patent, U.K. trademark, or Berne Convention copyright, or that the Programs misappropriate any trade secret of any third party within the country in which the Site is located. The foregoing indemnification is conditioned on Licensee notifying Ipsotek promptly in writing of such Demand, Licensee giving Ipsotek sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Licensee cooperating in the defense thereof at Ipsotek’s request and expense, provided that Licensee may, at its own expense, assist in such defense if it so chooses. Ipsotek, at its sole option and expense may: a) procure for Licensee the right to continue using the Programs; or (b)substitute a non-infringing version of the Programs so that the Programs become non-infringing and still conform to the applicable specifications; or (c) return the license fee paid by Licensee hereunder for the Programs, less an amount equal to straight line depreciation of the Programs over five (5) years, and Licensee shall immediately return the Programs to Ipsotek. Licensee shall not incur any costs or expenses on behalf of Ipsotek under or pursuant to this Section without Ipsotek’s prior written consent.
6.2 Ipsotek shall have no liability to
Licensee for any Demand by a third party alleging infringement or misappropriation based upon (a) any use of the Programs in a manner other than as permitted in this License; or (b) any use of the Programs in combination with any product not provided by Ipsotek, to the extent that such Demand is directed against the combination. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEMANDS.
7. Term and Termination
7.1 Ipsotek may terminate this License immediately upon written notice to Licensee if Licensee breaches the provisions of Section 1 (License). Either party may at its option terminate this License immediately upon written notice in the event that the other party: (a) breaches any term of this License, which breach remains uncured for a period of thirty (30) days after written notice of such breach to the other party; or (b) becomes insolvent or asserts that it is insolvent, fails to pay its general obligations as they become due, institutes or has instituted against it any proceeding, arrangement, receivership or assignment for the benefit of creditors, or files or has filed against it any petition under applicable bankruptcy laws.
7.2 ON TERMINATION OF THIS LICENSEFOR ANY REASON LICENSEE SHALL CEASE USING THE PROGRAM AND ALL COPIES OF THE SAME SHALL BE IMMEDIATELY RETURNED TO IPSOTEK.
7.3 The operation of Clauses 3, 5, 6, 7 and 8 shall survive the termination of this License.
8.1 The Program is subject to laws and regulations of the United Kingdom that restrict its export. You agree that you shall not export or "re-export" (transfer) the Program unless you have complied with all applicable United Kingdom and foreign government export controls and approvals.
8.2 If one or more provisions of this License are held to be illegal or unenforceable under applicable law, such illegal or unenforceable provision(s) shall be limited or excluded from this License to the minimum extent required so that this License shall otherwise remain in full force and effect and enforceable in accordance with its terms.
8.3 This License shallbe governed by and construed under the laws of England and Wales and the parties hereto submit to the exclusive jurisdiction of the courts of England.
8.4 Licensee agrees that this License is the complete and exclusive statement of the mutual understanding between the
parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this License. It may not be modified or waived except in writing signed by authorized representatives of both parties.
8.5 All notices under this License shall be in writing, and shall be deemed given when personally delivered, or after being sent by prepaid certified or registered UK mail to and received by the address of the party to be noticed or such other address as such party last provided to the other by written notice.
8.6 Licensee shall not assign, transfer, or sublicense any obligations or benefit under this License without the prior written consent of Ipsotek (and any such attempt shall be void). Ipsotek may assign this License in whole or in part.