CUSTOMER SOFTWARE LICENCE


NOTICE

DO NOT USE THE ENCLOSED, DOWNLOADED OR DELIVERED SOFTWARE (THE "SOFTWARE") UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS OF THIS LICENCE AND WISH TO BECOME THE LICENSEE OF THE SOFTWARE. YOUR NOTIFIED ACCEPTANCE OR USE OF THE SOFTWARE WILL BE DEEMED TO BE YOUR ACCEPTANCE OF THE FOLLOWING TERMS. ACCEPTANCE BINDS YOU TO THE TERMS OF THE LICENCE. IF YOU DO NOT WISH TO ACCEPT THE TERMS, AND HAVE RECEIVED THE CD-ROM VERSION, RETURN THE CD-ROM TOGETHER WITH ALL DOCUMENTATION AND PACKAGING TO THEOREM SOLUTIONS LIMITED OR ITS AGENT OR OTHER PARTY FROM WHOM YOU OBTAINED THIS PACKAGE WITHIN 30 DAYS OF PURCHASE AND ANY LICENCE FEE YOU MAY HAVE PAID WILL BE REFUNDED TO YOU.

LICENCE TERMS

Theorem Solutions Limited no. 2384114 of Theorem House, Marston Park, Bonehill Road, Tamworth, Staffordshire, B78 3HU, England ("Theorem") including its subsidiaries, agents, successors and assigns is the proprietor of the Software and upon using the Software the Licensee accepts a non-exclusive, non-transferable licence to "Use" (as defined below) the Software EITHER 1) on a single computer system or multiple systems if multiple licenses have been purchased (the "System") or 2) over a Wide Area Network (WAN) or 3) over a Local Area Network (LAN) or 4) in Node Locked mode (including where connected to a WAN or a LAN) and subject to the terms and conditions contained herein ("the Licence"). Wide Area Network (WAN) means a computer network that spans a relatively large geographical area often hundreds or thousands of miles or kilometres, typically a WAN consists of two or more local area networks (LANs). Computers connected to a wide-area network are often connected through public networks, such as the telephone system. They can also be connected through leased lines or satellites. Local Area Network (LAN) means a computer network that spans a relatively small area, site or campus and confined to a single building or group of buildings, located within a few miles or kilometres of each other. Node locked mode means limited to the machine on which the Software is loaded and runs.

Depending on the License Mode selected as defined in the quotation

This Licence entitles the Licensee to :

(a)

  1. load, install and Use the Software contained on the CD-ROM or downloaded on one Central Processing Unit ("CPU") of the System; or
  2. load, install and Use the Software on the CD-ROM or downloaded on a server for use over a WAN; or
  3. load, install and use the Software on the CD-ROM or downloaded on a server for use over a LAN; or
  4. load, install and use the software on the CD-ROM or downloaded on a single CPU in Node locked mode.

(b) Use the Software in accordance with the provisions of Clause 1 of this Licence;

(c) In the event that the Licensee's System, WAN or LAN is inoperable or requires or is under repair, the Licensee will be permitted to Use the Software on a back-up system at no extra charge, until the System, WAN or LAN is operational.

1. Use of the Software

1.1 For the purpose of this Licence "Use" means and includes:

1.1.1 utilisation of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk, CD ROM or other storage device) of the System or relevant server (as appropriate) for the processing of the instructions or statements contained in such Software.

1.1.2 copying the Software which is in machine-readable form for Use by the Licensee on the System or relevant server (as appropriate) for the purposes only of understanding the contents of such machine-readable material and for back-up;

1.1.3 storing the whole or any part of the Software on the System, Server or other storage unit or disk;

1.1.4 utilising the instructional and/or operational documentation relating to the Software.

1.2 The Licensee will also be permitted to Use the Software on a portable, lap top or home computer where the Software is permanently installed on the hard disk or other storage device of the System or Server (as appropriate) and the Licensee or its relevant employee as the case may be is the predominant user of the Software.

1.3 The Licensee will use the Software for its own business purposes only. The Licensee will not permit any third party to use the Software nor use the Software on behalf of or for the benefit of any third party in any way whatever including, without limitation, using the Software for the purpose of operating a bureau service, a timesharing service, operating as an application service provider or other shared processing type of environment.

1.4 This Software is a commercial product that has been developed exclusively at private expense. If this Software is acquired directly or indirectly on behalf of a unit or agency of the United States Government under the terms of (i) a United States Department of Defense contract, then pursuant to DOD FAR Supplement 227.7202-3 (a), the United States Government shall only have the rights set forth in this License Agreement; or (ii) a civilian agency contract, then use, reproduction, or disclosure is subject to the restrictions set forth in FAR clause 27.405(b)(2)(i), entitled Acquisition of Existing Computer Software, and any restrictions in the agency’s FAR supplement and any successor regulations thereto, and the restrictions set forth in this License Agreement

1.5 Support services in respect of the Software are available to the Licensee only under the terms and conditions of a separate and distinct software support agreement and the Licensee acknowledges that this Agreement does not entitle the Licensee to the provision of consultancy or support services in connection with the Software.

2. Licence Fee

2.1 Licensee at the time the Software is obtained from Theorem or its agent or reseller the Licence Fee will be payable within the number of days specified in Theorem's invoice or the agent or reseller’s invoice unless otherwise agreed in writing by Theorem.

2.2 The License Fee for WAN or LAN usage will be calculated in accordance with the quotation.

3. Licensee's Undertakings

The Licensee undertakes:

3.1 To maintain accurate and up-to-date records of the number and location of all copies of the Software;

3.2 To supervise and control Use of the Software in accordance with the terms of this Licence including without limitation the restrictions on Use contained in Clause 1;

3.3 To ensure that its employees, agents and other parties who will use the Software are notified of this Licence and the terms hereof prior to such employee, agent or party using the same;

3.4 To reproduce and include Theorem's copyright notice on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software made herein;

3.5 Not to provide or otherwise make available the Software in whole or in part (including where applicable, but not limited to program listings, object code and source program listings, object code and source code), in any form to any person other than the Licensee's employees or as specified in Clause 3.3 above without prior written consent from Theorem; and

3.6 Within 14 days after the date of termination or discontinuance of this Licence for whatever reason, to destroy the Software and all copies, in whole and in part, in any form including partial copies or modifications of the Software received from Theorem or made in connection with this Licence and all documentation relating thereto.

4. Warranty

4.1 The Licensee acknowledges that software in general is not error-free and agrees that the existence of minor errors not affecting functionality will not constitute a breach of this Licence.

4.2 In the event that the Licensee discovers a material error which substantially affects the Licensee's use of the Software and notifies Theorem of the error within 90 days from the date of dispatch of the Software Theorem will at its sole option either refund the Licence Fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not so comply PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Software not performed by Theorem or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.

5. Theorem's Liability

5.1 EXCEPT AS STATED ABOVE THEOREM DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE OR SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

5.2 THEOREM'S MAXIMUM LIABILITY FOR ANY CLAIM FOR LOSS OR DAMAGE MADE BY THE LICENSEE AGAINST THEOREM FOR ANY MATTERS RELATING TO THIS LICENCE (INCLUDING NEGLIGENCE ON THE PART OF THEOREM, EXCEPT IN RESPECT OF PERSONAL INJURY OR DEATH CAUSED BY THEOREM'S NEGLIGENCE, IN WHICH CASE LIABILITY IS NOT EXCLUDED OR RESTRICTED) WILL NOT EXCEED THE LICENCE FEE.

5.3 THEOREM WILL NOT BE LIABLE TO THE LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS (WHETHER DIRECT OR INDIRECT) LOSS OF PROFITS, LOSS OF OPPORTUNITIES OR ANTICIPATED SAVINGS, LOSS OF DATA OR LOSS OF USE.

6. Copyright, Patents, Trade Marks and Other Intellectual Property Rights

The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto are and remain the sole property of Theorem. The Licensee undertakes not during or at any time after the expiry or termination of this Licence to in any way question or dispute the ownership by Theorem thereof or Theorem’s right to sub-license the Software.

7. Indemnity

7.1 Theorem agrees to indemnify and save harmless and defend at its own expense the Licensee from and against any and all direct claims of infringement of any patent, trade mark, industrial design, copyright or other proprietary right affecting the Software PROVIDED THAT (i) the Licensee has not done, permitted or suffered to be done anything which may have been or become an infringement of any such rights (including but not limited to using the Software to perform the Licensee's or other party's applications or using the Software in combination or merged with other software programs or devices) and (ii) the Licensee has exercised a reasonable standard of care in protecting the same.

7.2 The Licensee undertakes to provide Theorem with prompt notice of any claim specified in Clause 7.1 above that is made against the Licensee and Theorem will have the right to defend any such claims and make settlements thereof at its own discretion and the Licensee will provide such assistance as Theorem may reasonably require to settle or oppose any such claims.

7.3 In the event that any such infringement occurs or may occur, Theorem may at its sole option and expense:

7.3.1 procure for the Licensee the right to continue using the Software or infringing part thereof; or

7.3.2 modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or

7.3.3 replace the Software or infringing part thereof by other software of similar capability; or

7.3.4 repay to the Licensee the Licence Fee or balance thereof relating to the whole or the infringing part of the Software.

8. Confidential Information

8.1 All information, data, drawings, specifications, documentation, software listings, source or object code which Theorem may have imparted and may from time to time impart to the Licensee relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential. The Licensee agrees that it will use the same solely in accordance with the provisions of this Licence and that it will not at any time during or after expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without Theorem's prior written consent.

8.2 The Licensee must not sell, lease, license, sub-license or otherwise deal with the Software or the accompanying manuals or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by Theorem.

8.3 The foregoing provisions do not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.

9. Termination

9.1 Theorem may by notice in writing to the Licensee terminate this Licence if the Licensee is in breach of any term, condition or provision of this Licence or required by the applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice from Theorem specifying such breach.

9.2 The Licensee may by notice in writing to Theorem terminate this Licence within 30 days of despatch of the Software. In this case, the Licensee must comply with its obligations in Clause 3.6, and Theorem will refund in full the Licence Fee.

9.3 Termination, howsoever or whenever occasioned is subject to any rights and remedies Theorem may have under this Licence or under the applicable law.

10. Government Licences and Consents

10.1 The Licensee is hereby notified that export and other restrictions can apply to certain products and/or in respect of certain countries to which it is intended to export products.

10.2 In accepting the Licence the Licensee accepts full responsibility at its expense for obtaining any government licences, permissions and consents (whether from the UK Government or otherwise) relating to the exportation and use of the Software.

11. General

11.1 The Licensee may not assign or otherwise transfer all or any part of the Software or this Licence without the prior written consent of Theorem.

11.2 If this Licence is sold by an agent or reseller on behalf of Theorem, the Licensee expressly acknowledges that Theorem can enforce any right or remedy granted to Theorem under the terms of this Licence against the Licensee in Theorem's capacity as licensor.

11.3 Failure or neglect by either party to enforce at any time any of the provisions of this Licence will not be construed nor will be deemed to be a waiver of that party's rights under this Licence nor in any way affect the validity of the whole or any part of this Licence nor prejudice that party's rights to take subsequent action.

11.4 In the event that any of these terms and conditions or provisions is 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.

11.5 The parties agree that the Licence concluded between them and constituted on these terms and conditions will be construed in accordance with English Law and the parties submit to the non-exclusive jurisdiction of the English courts.

11.6 This Licence represents the entire agreement between the parties relating to its subject matter. The Licensee irrevocably and unconditionally waives any rights it may have to claim damages or rescind this Licence for any misrepresentation not contained in this Licence unless the misrepresentation was made fraudulently.