[1.1] In the Agreement the following words shall have the meanings hereby assigned to them:

Transcription

1 END-USER LICENCE AGREEMENT FOR OPERA SOFTWARE IMPORTANT READ CAREFULLY: This End-User Licence Agreement ( EULA ) incorporating the Licence Certificate (as herein after defined) is a legal agreement between you (the Licensee ) (either an individual or a single entity) and Cobham CTS Ltd trading as Cobham Technical Services (the Company ) for the software that accompanies this EULA ("Software"). An amendment or addendum to this EULA including the Licence Certificate may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA AND THE LICENCE CERTIFICATE BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE. [1.] Interpretation [1.1] In the Agreement the following words shall have the meanings hereby assigned to them: Computer means a computer on which the Software will be accessed. Documentation means the operating manuals, user instructions, technical literature and all other related materials in eye readable form supplied to the Licensee by the Company for aiding the use and application of the Software. Licence means this EULA and associated addendums and schedules including the Licence Certificate. Licence Certificate means an addendum to the EULA in the form of a document which is issued by the Company which describes specific terms and conditions applicable to this EULA. In event of conflict between the terms of the EULA and any Licence Certificate issued as an addendum thereto the terms of the Licence Certificate shall take precedence. Licence Fee means the fee for the Software Materials and the Licence. Location means a site under the control of the Licensee at the geographic location described in the Licence Certificate. Person includes any body of persons corporate or incorporate. COMI Language means the proprietary software script language supplied by Company with the Software Materials. Software Material means the Software and the Documentation. Specification means the specification set out in the Documentation. Technical Liaison means the person nominated by the Licensee in accordance with Clause 4.1 Co-ordinator Warranty Period means a period beginning on the date of Licensee s receipt of the Software and ending twelve (12) months thereafter. [2.] The Licence [2.1] The Company grants to the Licensee a non-exclusive, non-transferable licence to use the Software and the Documentation solely by the Licensee on the Computer(s) at the Location provided that the Licensee complies with all the terms and conditions of this Licence. This right to use does not extend to any other organisations including subsidiary companies partnerships or organisations with which the Licensee has trading agreements of any type unless expressly stated in the Licence Certificate. [2.2] Subject always to the other terms of this Agreement including the Licence Certificate the Licensee may install the Software on the Computer(s) subject to the restriction that the number of concurrent users is restricted to such number as the Licensee has purchased licences for.

2 [2.3] Property Rights [2.3.1] The Software Materials, the copyright and other intellectual property rights of whatever nature in the Software Materials are and shall remain the property of the Company or its suppliers. Copyright in 3D InterOp and ACIS software is the property of Spatial Corporation. [2.3.2] The Licensee shall notify The Company immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Software Materials by any person. [2.3.3] The grant to the Licensee herein is by way of Licence only and the Licensee shall not obtain through this Licence any interest or rights in the copyright or any other property in the Software Material. [2.4] Updates This Licence applies to updates, supplements, add-on components of the Software that the Company may provide or make available to the Licensee after the date that the initial copy of the Software was supplied, unless they are accompanied by separate terms. [2.5] Restrictions on use, Limited Licences Certain limitations may apply to this Licence and the use of the Software. Such limitations will be as set out in the Licence Certificate. [3.] Warranty [3.1] The Company warrants that during the Warranty Period: (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software will substantially conform to the Specification. Licensee's sole and exclusive remedy and the entire liability of the Company under these limited warranties will be, at the Company s option, repair via patching or replacement, or refund of the Licence Fee. Except as expressly granted in this Agreement, the Software is provided AS IS. The Company does not warrant that the Software is error free or that Licensee will be able to operate the Software without problems or interruptions. [3.2] This warranty does not apply if the Software (a) is licensed for beta, evaluation, testing or demonstration purposes for which the Company does not receive a license fee, (b) has been altered, except by the Company, (c) has not been installed, operated, repaired, or maintained in accordance with the Documentation, or (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident. [3.3] Except as expressly provided in this Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance, merchantability or fitness for purpose of the Software Materials is given or assumed by the Company and all such warranties, conditions, undertakings and terms are hereby excluded. [3.4] The provision of maintenance and support beyond the terms of the above warranty shall be subject to a separate maintenance and support agreement. [4.] The Licensee's Rights and Obligations [4.1] The Licensee shall within 30 days of signing this Agreement nominate a member of its staff to act as Technical Liaison Co-ordinator who will be responsible for the liaison with the Company in all matters relating to the Software and inform the Company in writing of such nomination. [4.2] During the term or any extension of this Agreement and thereafter if the Licensee develops or has developed on its behalf any computer programs based on relating to or derived from the

3 Software or any parts thereof it is agreed that any such computer programs shall not be made available to any third Person including any other licensee of the Software under any circumstances without the express prior written consent of the Company. Such consent will not be unreasonably withheld where the other licensee of the Software is a wholly owned subsidiary of the Licensee. [4.3] Non-Disclosure [4.3.1] The Licensee shall not dispose of, give away, loan out, exchange, throw away or sub-licence, offer on a bureau basis or photocopy the Software Materials or any part thereof, with the sole exception that the Licensee may make a single copy of the Software Materials for operational security / back-up use. Such copy and the media on which it is stored shall be the property of the Company and Licensee shall ensure that it bears the Company s proprietary legend in the form given at Schedule 1. This Agreement shall apply to all copies as it applies to the Software Materials. [4.3.2] During the term or any extension of this Agreement and thereafter the Licensee will hold secret and confidential and will not disclose to any Person the Software Material or any part thereof. The Licensee shall exercise all necessary precautions to safeguard the secrecy of the Software Material from access, use or copying by or unauthorised disclosure to anyone other than those of the Licensee s employees to whom it is necessary to disclose the Software Material for the Licensee s use. [4.3.3] The Licensee shall not permit any third party to use or have access to the Software Materials nor where the Software has been purchased by an educational establishment or has been supplied for evaluation/assessment purposes, use the Software Materials in providing a service to a third party organisation or undertaking other than not-for-profit research. [4.4] Except as expressly permitted hereunder or as set out in the Licence Certificate Licensee shall not, nor shall Licensee permit any other party to: (a) modify, adapt, alter, translate, or create derivative works of the Software Material; (b) merge the Software Material with other software, other than as described in the Documentation or as approved in writing by the Company; (c) sublicense, distribute, sell, use for service bureau use, use as concurrent use, lease, rent, loan or otherwise transfer the Software Materials to any third party; (d) reverse engineer, decompile, disassemble, or attempt to derive the source code for the Software Materials; (e) otherwise use or copy the Software Material. For the avoidance of doubt nothing in this Clause 4.4 shall limit Licensee s rights to create and use script files using the Company s COMI language. [5.] Limitation of Liability [5.1] To the maximum extend permissible by Law the Company shall not, under any circumstances, be liable to the Licensee for any indirect, special, consequential and/or contingent loss or damage or loss of use or profit, loss of revenue, loss of product, liquidated damages or penalties, economic loss, delay in operations, loss of contracts or loss of business whether or not the same are foreseeable and whether arising out of breach of contract, tort, statutory duty or otherwise. [5.2] The Company accepts unlimited liability for death or personal injury resulting from its negligence and Clauses 5.1 and 5.3 do not apply to such liability. [5.3] To the maximum extend permissible by Law in no event shall the Company s aggregate liability to the Licensee whether in contract, tort (including negligence) and including without prejudice to the generality of the foregoing any liability of the Company arising under any indemnity or otherwise exceed the greater of 115% of the Licence Fee and 10,000. [5.4] Neither party to the licence limits its liability to the other, if any, for fraud.

4 [6.] Export Restrictions [6.1] The Licensee acknowledges that the Software Material may be subject to export control and import laws and regulations of: [6.1.1] the United States, including without limitation the International Traffic in Arms Regulations (ITAR) (22 C.F.R ), the National Industrial Security Program Operating Manual (NISPOM) (DoD M), the U.S. Export Administration Regulations, 15 C.F.R. Parts , and other controls administered by the U.S. Department of Commerce, and the sanctions regulations administered by the U.S. Department of Treasury Office of Foreign Assets Control; [6.1.2] the European Union and its member states, including without limitation Council Regulation (EC) No. 1334/2000; and [6.1.3] other countries (collectively, Export/Import Law ). The Licensee agrees to comply with all Export/Import Law applicable to the Software Material and assumes sole responsibility for obtaining licences and other authorisations that are required under Export/Import Law to deliver and use the Software Material. The Licensee acknowledges and agrees and shall procure that any person to whom the Software Material is made available shall acknowledge and agree that the Software Material shall not be exported, re-exported or otherwise transferred to Cuba, Iran, North Korea, Syria, Sudan, or any other countries for which the United States and/or the European Union maintains an embargo (collectively, Embargoed Countries ), or a national or resident thereof, or to any person or entity on the U.S. Department of Treasury List of Specially Designated Nationals or the U.S. Department of Commerce Denied Parties List or Entity List, or to any person on any comparable list maintained by the European Union or its member states (collectively, Designated Nationals ). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. The Licensee represents and warrants that neither it nor any of the persons to whom the Software Material is made available is located in, a national or resident of, or under the control of an Embargoed Country or Designated National. Licensee specifically shall obtain all required authorizations from the U.S. Government before transferring or otherwise disclosing technical data or technology (as those terms are defined in 22 C.F.R and 15 C.F.R. 722, respectively), to any Foreign Person (as defined in 22 C.F.R ). [7.] Duration and Termination [7.1] The Licence shall, subject to Clause 7.2, continue until terminated in accordance with any of the provisions of Clause 7 or any other clause of this Agreement. [7.2] Where the Licence is granted on a time limited basis, the Licence will automatically terminate when the time limit is reached. [7.3] The Licensee may terminate the Licence at any time by giving written notice to the Company. [7.4] The Company may terminate the Licence forthwith on giving notice in writing to the Licensee: [7.4.1] if the Licensee commits a material breach (in the reasonable sole opinion of the Company) of any of the provisions of the Licence and, in the case of a breach which is capable of remedy, shall fail to remedy or correct such breach or failure within 30 days after receipt of a written request to remedy such breach from the Company; or [7.4.2] if the Licensee permanently discontinues the use of the Software Materials; or

5 [7.4.3] if the Licensee shall fail or refuse to pay the Licence Fee or any other sum due to the Company in relation to the Software within 30 days after the due date; or [7.4.4] if the Licensee is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into either voluntary (otherwise than for reconstruction or amalgamation), or compulsory liquidation or a receiver or administrator is appointed over their assets. [7.5] On termination of this Licence for any reason the Licensee shall immediately return to the Company all the Software Materials (including any modified and amended versions thereof) and all copies of the whole or part of the Software Materials or, if requested by the Company shall destroy the same (in the case of Software by erasing them from the media on which they are stored) and send to the Company a statement signed by a duly authorised officer certifying that all such Software Material has been erased or destroyed. [8.] General [8.1] Notwithstanding any other provision hereunder, the Company shall not be liable to the Licensee for its failure to perform any of its obligations to the extent that such failure is a result of circumstances beyond its reasonable control. [8.2] No waiver by either party to this Licence of any of the terms or obligations of this Licence shall constitute a waiver of any other term contained herein. [8.3] If any of the words or provisions of this Licence shall be deemed invalid, illegal or unenforceable for any reason, then this Licence shall be read as if the invalid, illegal or unenforceable words or provisions had to that extent been deleted and the validity of the remaining provisions shall not be affected. [8.4] This Licence shall constitute the entire Agreement between the parties as to the matters to which it relates. [8.5] The Licensee shall not be entitled to assign, sub-licence or otherwise transfer the Licence whether in whole or in part without the consent in writing of the Company. [8.6] This Licence shall be subject to and construed in accordance with the law of England and the parties irrevocably submit to the jurisdiction of the English courts. [8.7] The provisions of this Licence shall apply whether the Company supplies Software and ancillary services on its own behalf or as an agent for a third party. Schedule 1 Copyright Cobham CTS Limited 2009/10/11. The material contained in this media remains the property of Cobham CTS Limited and is Copyright. It may only be used in accordance with the terms of the Licence Agreement. It may not be reproduced adapted merged translated or used for any other purpose without the written consent of Cobham CTS Limited, Oxford, England.