This End User Licence Agreement (“EULA”) is a legal agreement between Interactive Software Limited (the “Licensor”) and you, the customer or end user ("Customer") of this Interactive Software computer program (“Software). This EULA governs the Customer’s use of the Licensed Software, the Documentation and any related materials (which, together with the Software, are the “Licensed Materials”).
The Licensor, Interactive Software, is a company incorporated under the laws of England and Wales with registered number: having its principal office at Ashted Lock, Birmingham Science Park, Aston, Birmingham, B7 4AZ.
Important! By installing and/or using the Licensed Materials you represent and confirm that a) you are legally authorised to bind the Customer and b) you have read this EULA, understand it and agree on Customer behalf to be bound by the terms of this EULA.
1.1 In consideration of your payment of fees and your agreeing to the terms of this EULA, the Licensor hereby grants to the Customer a non-exclusive, non-transferable, revocable licence to use the Licensed Materials subject to and in accordance with the terms of this EULA.
1.2 The Customer agrees to do each of the following:
1.2.1 only use the Software for its own internal business purposes and (where applicable) on the equipment and at the location(s) agreed with Interactive Software;
1.2.2 to ensure the Licensed Materials are only used in accordance with the terms of this EULA;
1.2.3 to not modify, alter or in any way interfere with the Software or merge the Software with other data, programs or systems save to the extent permitted by law. Without prejudice to any other remedy of the Licensor, if the Customer (in breach of this paragraph) does modify, alter, interfere with or merge the Software no such modification, alteration, interference or merger however extensive shall derogate from the obligations of and restrictions on the Customer under this EULA which shall thenceforth apply to the Software as so modified, amended, altered, interfered with or merged;
1.2.4 not to sell, lease, licence, sub-licence or otherwise deal with the Software or any part or parts save as expressly permitted under agreement with the Licensor or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor;
1.2.5 not to use the Software to provide data processing services to third parties, or otherwise use the Software on a “service bureau” basis;
1.2.6 to ensure that its employees, agents and other parties who shall use the Software are notified of this EULA and the terms hereof prior to such employee, agent or party using the same;
1.2.7 not to provide or otherwise make available the Software in whole or in part in any form to any third party without prior written consent from the Licensor;
1.2.8 to install any Maintenance Release or New Version within three (3) months of its receipt by the Customer;
1.2.9 to test all Maintenance Releases in a test environment to ensure compliance with internal working practices and that all reports, imports and exports are not negatively affected by the Maintenance Release before using such releases in the Customer’s live environment. The Customer shall keep a copy of such test results and shall, upon reasonable request, make such results available to the Licensor;
1.2.10 to keep in a safe, secure place regularly updated backup or security copies of the Software and any data associated with it; and
1.2.11 to ensure that the personnel using the Software have received appropriate training (including by completing training provided by the Licensor).
1.3 The Customer may, with the prior written consent of the Licensor (not to be unreasonably withheld or delayed), use the Software on another similar configuration of equipment to that on which it is primarily installed on a temporary basis, during a situation which prevents the Customer’s use of the Software on the usual equipment, provided that such new equipment is under the direct control of the Customer. The use of the Software on and in conjunction with such equipment shall be at the sole risk and responsibility of the Customer.
1.4 To the extent permitted by law, the Customer may make only so many copies of the Licensed Materials as are reasonably necessary for operational security. Such copies must be securely stored and the media on which they are stored shall be the property of the Licensor and the Customer shall ensure that such copies bear the Licensor’s proprietary notice.
1.5 The right to use the Software under this EULA is limited to loading, executing, storing, transmitting and displaying or otherwise using the Software for internal business purposes in object code form.
1.6 The Software incorporates third party software and such software is licensed to the Customer on an 'as is' basis. The Licensor does not provide any warranties or representations in respect of the third party software.
1.7 If the Licensor has reason to suspect that the use of the Licensed Materials by the Customer is in breach of this EULA, the Customer will permit the Licensor to check the use of the Licensed Materials. The Customer will permit, upon reasonable notice, the Licensor or their employees or agents to enter during normal working hours any premises owned or controlled by the Customer for this purpose.
1.8 If any unauthorised use is made of the Software (or any part of it), and such use is attributable to the act or default of the Customer, then, without prejudice to the Licensor's other rights and remedies, the Customer will immediately be liable to pay the Licensor an amount equal to the charges which the Licensor would have levied had the Licensor authorised the grant of a licence to or for such unauthorised user at the beginning of the period of such unauthorised use together with statutory interest from the date of such unauthorised use to the date of payment.
2.1 The Licensor warrants to the Customer that:
2.1.1 it has the necessary authority to grant the licence under this EULA; and
2.1.2 for a period of one year from the delivery of the Software, the Software shall provide the capabilities, features and facilities set out in the Documentation in all material respects provided always that the Software is used in accordance with the terms of this EULA ("Warranty Period").
2.2 The Licensor will have no liability or obligation under the warranty given in Paragraph 2.1.2 unless it has received written notice from the Customer of any non‑conformance within the Warranty Period. Should the Software fail to perform in accordance with Clause 2.1.2, the Licensor's sole obligation shall be, at the Licensor's option to: (i) correct the failure by bringing the performance of the Software into substantial compliance with the Documentation; or (ii) replace the defective part.
2.3 The Licensor does not warrant that the operation of the Software will be uninterrupted or error-free.
2.4 It is the Customer's responsibility to ensure that the facilities and functions of the Software meet the Customer's requirements.
2.5 Except as expressly provided in this EULA, the Licensor excludes all representations, conditions and warranties whether express or implied (by statute or otherwise) to the fullest extent permitted by law.
2.6 The Customer will notify the Licensor as soon as reasonably practicable if it becomes aware of any breach of Paragraph 2.1. Before the Customer is entitled to exercise any other right or remedy in relation to any such breach, the Licensor shall be given a reasonable opportunity to correct any such breach by repeating performance of any services provided this is done within a reasonable time and without additional charge to the Customer.
3.1 The licence granted under this EULA will last for the duration of the subscription or usage term purchased by the Customer, but will terminate automatically in the event of a breach by Customer of its obligations under this EULA.
3.2 The Licensor may terminate this EULA at any time if there is a material change in the control of the Customer and control for the purposes of this clause is as defined by section 416 of the Income and Corporation Taxes Act 1988.
3.3 Upon termination of this EULA, however caused:
3.3.1 all rights, licences and permissions in relation to the Licensed Materials will automatically terminate;
3.3.2 the Customer shall immediately cease all use of the Licensed Materials and promptly either, at the option of the Licensor, return or destroy (such that the Licensed Materials shall be permanently unusable and unreadable) all copies of the Licensed Materials within the Customer's control or possession; and
3.3.3 if required by the Licensor, a director of the Customer will certify in writing to the Licensor that it has complied with the provisions of this Clause and the Customer hereby irrevocably authorises the Licensor to enter any of its premises and take such action as the Licensor considers necessary in order to ensure that the Customer complies with the provisions of this Clause.
4.1 Except for the granting of the licence in Paragraph 1 of this EULA, the Customer will not acquire any other rights in the Intellectual Property Rights in the Licensed Materials by virtue of this EULA. The Licensed Materials and any permitted copies remain the property of the Licensor and/or its licensors.
4.2 The Customer agrees not to remove, suppress or modify in any way any proprietary marking incorporated in the Licensed Materials and shall incorporate such proprietary markings in any back-up copies.
4.3 The Customer shall notify the Licensor immediately if it becomes aware of any unauthorised access to, use or copying of any part of the Licensed Materials by any person.
4.4 The Licensor shall indemnify the Customer against any losses or damages that are incurred or suffered by the Customer in respect of any claim or action that the normal operation possession and/or use of the Licensed Materials by the Customer in accordance with the terms of this EULA infringes the UK based Intellectual Property Rights of the said third party (an “Intellectual Property Infringement”) provided that the Customer:
4.4.1 gives notice to the Licensor of any Intellectual Property Infringement as soon as it becomes aware of the same;
4.4.2 gives the Licensor the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and shall not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express instructions of the Licensor; and
4.4.3 acts in accordance with the reasonable instructions of the Licensor and give to the Licensor (at the Licensor’s expense) such assistance as it shall reasonably require.
4.5 The Licensor shall have no liability to the Customer in respect of an Intellectual Property Infringement to the extent that the same results from or is attributable to:
4.5.1 any alteration, modification, enhancement, development, adjustment or other change to the Licensed Materials made by or on behalf of the Customer;
4.5.2 any merger of the Software with any other software;
4.5.3 any breach by the Customer of this EULA; or
4.5.4 third party software.
4.6 The foregoing states the entire liability of the Licensor with regard to any Intellectual Property Infringement.
5.1.1 death or personal injury resulting from negligence;
5.1.2 breach of any condition as to title or quiet enjoyment implied by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982; and/or
5.1.3 for fraud (including fraudulent misrepresentation).
5.2 The Licensor’s liability to the Customer under or in relation to any direct loss arising out of the performance of this EULA (whether in tort (including negligence) breach of contract or otherwise) shall be limited in aggregate in any Year to a sum equivalent to the fees paid by the Customer for the use of the Licensed Materials.
5.3 Whether or not it has been advised of the possibility, the Licensor shall not be liable to the Customer under or in relation to this EULA (whether in tort (including negligence) breach of contract or otherwise) for any:
5.3.1 of the following direct losses: loss of sales, loss of profit, loss of capital, loss of turnover, loss of bargain, loss of opportunity, lost management time, loss of use of computer equipment, loss of data or loss of time;
5.3.2 indirect or consequential loss or damage;
5.3.3 loss or damage resulting from, or attributable to, any inaccuracy or incompleteness of the data or information forming part of, or used by, the Licensed Materials; or
5.3.4 loss or damage resulting from or directly attributable to any delay in or omission by the Customer of its responsibilities (as set out in the Terms of Reference or otherwise reasonably requested by the Licensor).
5.4 The Licensor will not be liable for any loss or damage caused by or resulting from any defect or inaccuracy in any Licensed Materials if the loss or damage occurred after the Customer had been supplied with any Maintenance Release or New Version which did not contain the defect or inaccuracy concerned.
5.5 The Customer will be solely responsible for the maintenance and security of its own software and data. The Licensor shall have no liability for any loss or corruption of any such software or data, however caused, where such loss or corruption could have been avoided or corrected if the Customer had taken and retained in a secure place, appropriate backup copies.
6.1 Option to Obtain Source Code. The Customer may, after the date of this EULA, obtain the Software source code and all related Documentation from the Licensor upon the parties' execution of the Licensor’s escrow agreement in accordance with Paragraph 6.2 (Escrow Agreement) and the Customer acknowledges and agrees that the costs of the Escrow Agreement are to be paid by the Customer.
6.2 Escrow Agreement. Such an escrow agreement will provide, at a minimum, that
6.2.1 the Licensor shall deposit into escrow the Software source code, together with any subsequent updates to the source code as and when they become available, and
6.2.2 the Customer may access the Software source code upon the occurrence of an insolvency event (as defined in the Escrow Agreement), in which case the Customer may continue to use the Software for the remainder of the subscription or usage term purchased by the Customer.
7.1 The Customer may not sub-licence, assign or transfer in any way any of its rights, liabilities and/or obligations under this EULA on a temporary or permanent basis to any third party without the prior written consent of the Licensor.
7.2 Variations to this EULA will not be effective unless agreed to in writing and signed by an authorised representative of the Licensor
7.3 If any part of this EULA is found by a court of competent jurisdiction or other competent authority to be invalid or unenforceable then such part shall be severed from the remainder of this EULA which shall remain valid and enforceable to the fullest extent permitted by law.
7.4 This EULA will be governed by and construed in accordance with English Law.
7.5 The English Courts will have exclusive jurisdiction over any matter arising under or in connection with this EULA.
8.1 The following words and phrases, in addition to those defined elsewhere in this EULA, have the meanings provided.