USER LICENSE
IF YOU HAVE ENTERED INTO A SOFTWARE LICENSE AND MAINTENANCE AGREEMENT WITH DIFFUSIONDATA LIMITED FOR THE VERSION OF THE DIFFUSION SOFTWARE THAT YOU HAVE DOWNLOADED, THE TERMS OF SUCH LICENSE SHALL APPLY TO YOUR USE OF THIS SOFTWARE AND THE TERMS OF THIS USER LICENSE WILL NOT APPLY TO YOU. IF YOU HAVE NOT ENTERED INTO A SOFTWARE LICENSE AND MAINTENANCE AGREEMENT WITH DIFFUSIONDATA TECHNOLOGY LIMITED FOR THE VERSION OF THE DIFFUSION SOFTWARE YOU HAVE DOWNLOADED YOUR USE OF THE DIFFUSION SOFTWARE WILL BE GOVERNED BY THE TERMS OF THIS USER LICENSE.
IMPORTANT – PLEASE READ THE TERMS AND CONDITIONS OF THIS USER LICENSE CAREFULLY BEFORE CONTINUING. THE LICENSE TO USE THE DIFFUSION SOFTWARE SHALL BE SUBJECT TO THESE TERMS AND CONDITIONS SHALL BE DEEMED TO BE ACCEPTED BY THE LICENSEE UPON THE EARLIER OF THE LICENSEE’S ACCEPTANCE OF THE TERMS OF THIS USER LICENSE OR THE INSTALLATION OR USE OF THE DIFFUSION SOFTWARE BY OR ON BEHALF OF THE LICENSEE. THESE TERMS AND CONDITIONS SHALL APPLY TO THE EXCLUSION OF ANY OTHER.
BACKGROUND
(A) DiffusionData Limited (“DiffusionData”) is the owner of or has exclusive rights to the “Software” (being DiffusionData’s software product(s) which may include without limitation associated software components, media, printed materials and online or electronic documentation). The Software is also supplied with components licensed from third parties (“Third Party Code”) available under various Free and Open Source Software licenses, which are not part of the Software. A list of Third Party Code can be found in the product manual together with the licenses applicable to each component.
(B) The “Licensee” (being the individual, company or body to whom the Software is provided or otherwise made available) wishes to take a license to use the Software for a limited time for the purpose of evaluating the Software for its internal business purposes with a view to acquiring a full license to the Software (“Evaluation”).
(C) DiffusionData is willing to grant a license to the Licensee to use the Software on the terms of this User License.
AGREED TERMS
1 USER LICENSE
DiffusionData grants to the Licensee a non-exclusive, non-transferable limited license for fourteen days or such other period as may be agreed by DiffusionData in writing (“Term”) to use the Software in object code form on its own internal computer system limited to the number of connections, servers and users as determined by DiffusionData to carry out the Evaluation in accordance with the terms and conditions of this User License. The Term shall commence on the date upon which the Licensee downloads the Software.
2 DIFFUSIONDATA’S OBLIGATIONS
2.1 DiffusionData shall either provide the Licensee with a key to the Software or such password and/or authentication key to enable the Licensee to access DiffusionData’s hosted system to enable the Licensee to use the Software in accordance with this User License.
3 LICENSEE’S OBLIGATIONS
3.1 Upon DiffusionData’s request and in any event upon expiry of the Term, the Licensee shall immediately cease to use the Software and when requested by DiffusionData, an officer of the Licensee shall uninstall it from its systems. The Licensee shall certify in writing to DiffusionData, such certification to be received no later than three days after the date of such request, that it has complied with the requirements of this clause.
3.2 The Licensee shall only use the Software for the purpose of conducting the Evaluation and not for any other purpose.
3.3 Without prejudice to clause 3.2, the Licensee shall not:
3.3.1 use the Software for the benefit of itself or of any third party other than pursuant to this User License;
3.3.2 resell, distribute, rent, lend or otherwise make any commercial use of the Software;
3.3.3 reverse engineer, decompile, disassemble or alter the Software in any way;
3.3.4 remove or alter any copyright notices, disclaimers or other notices on any and all copies of the Software; or
3.3.5 without the prior written consent of DiffusionData, publish any information, statement or commentary relating to the Software (including without limitation any opinion relating to the Software or its performance or bench mark or performance data relating to the Software) or the Evaluation or otherwise arising pursuant to this User License.
3.4 In connection with the Evaluation, the Licensee shall:
3.4.1 use the Software and any passwords and/or authentication keys provided by or on behalf of DiffusionData in accordance with any instructions DiffusionData may give to the Licensee;
3.4.2 comply with all applicable laws regarding use of the Software;
3.4.3 ensure that the Software is kept and used at all times at the premises of the Licensee;
3.4.4 restrict access to the Software and any passwords and authentication keys provided by or on behalf of DiffusionData and shall not, without obtaining DiffusionData’s prior written consent, disclose or supply the Software or any passwords or authentication keys provided by or on behalf of DiffusionData, except in confidence to such of its employees who reasonably need to know the same for the purpose of conducting the Evaluation;
3.4.5 shall procure that its employees shall, use the Software and any passwords and authentication keys provided by or on behalf of DiffusionData in accordance with the highest standards of skill and care and in compliance with all applicable laws;
3.4.6 use appropriate anti-virus software; and
3.4.7 make back-up copies of any of its information used with the Software.
3.5 Within fourteen days of the date of a request by DiffusionData the Licensee shall furnish DiffusionData with a statement signed by one of its officers verifying that the Software has been and is being used in accordance with the terms of the User License.
3.6 DiffusionData shall have the right from time to time to inspect and have access to any premises (and to the computer equipment located therein) at or on which the Software is being kept or used, and have access to any records kept in connection with the User License, for the purposes of ensuring that the Licensee is complying with the terms of the User License provided that DiffusionData provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times. Without prejudice to DiffusionData’s rights to access the premises as set out in this clause 3.6, where the Software allows for DiffusionData to audit the Licensee’s use of the Software remotely, DiffusionData may do so at any time.
3.7 In the event that any audit reveals that the Licensee has not complied with the terms of the User License, the Licensee shall pay the cost of the audit and shall be invoiced at the then current list price payable for a license to use the Software in the way and to the extent it has been used by the Licensee, together with interest thereon (at the rate of 4% per annum above the base rate for the time being of Lloyds TSB Bank plc) and such license fees shall become due with immediate effect.
3.8 The restrictions set out above do not apply to the Third Party Code which is governed by separate licenses.
4 INTELLECTUAL PROPERTY
4.1 No title or rights of ownership in any intellectual property rights or otherwise in the Software are or will be transferred to the Licensee and the Licensee shall have no rights in or to the Software other than the right to use it in accordance with the terms of the User License.
4.2 Title in and to the Software and any additions, modifications to or derivative works of the Software (but not of the Third Party Code) created by or on behalf of DiffusionData or the Licensee, including but not limited to, all intellectual property rights therein shall be and remain vested in and with DiffusionData and the Licensee hereby assigns the same with full title guarantee and free from encumbrances to DiffusionData. The Licensee hereby agrees to do all acts and things, including without limitation the signing of documents, to give effect to this clause 4.
4.3 The Licensee shall not act in any way to jeopardise or adversely affect the intellectual property rights of DiffusionData and shall do all things reasonably required by DiffusionData to ensure such rights are properly protected and vested in DiffusionData.
5 CONFIDENTIALITY
5.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 5.2. For the avoidance of doubt the Software, any information related to the Software and any passwords and authentication keys provided by or on behalf of DiffusionData to the Licensee shall be the confidential information of DiffusionData. This clause 5.1 does not apply to Third Party Code.
5.2 Each party may disclose the other party’s confidential information:
5.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this User License. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 5; and
5.2.2 as may be required by law, court order or any governmental or regulatory authority.
5.3 Confidential information of a party does not include any information that:
5.3.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its representatives in breach of this clause); or
5.3.2 was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party; or
5.3.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
5.3.4 was known to the receiving party before the information was disclosed to it by the disclosing party; or
5.3.5 the parties agree in writing is not confidential or may be disclosed.
5.4 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this User License.
6 WARRANTIES, INDEMNITIES AND DISCLAIMER OF WARRANTIES
6.1 The Licensee undertakes to indemnify and hold DiffusionData harmless against any and all liability, losses, costs and expenses (including without limitation any legal fees and costs), either incurred by DiffusionData or by a third party, arising from or in connection with:
6.1.1 the failure of the Licensee or its employees, agents or contractors to use the Software in accordance with applicable laws, rules or regulations or instructions of DiffusionData;
6.1.2 the negligence or intentional misconduct of the Licensee or its employees, agents or contractors; or
6.1.3 a breach of this User License by the Licensee or its employees, agents or contractors.
6.2 To the extent permitted by applicable law, DiffusionData expressly disclaims any warranty for the Software and the Third Party Code. The Software and the Third Party Code are provided ‘As Is’ without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, satisfactory quality, reasonable care and skill, non infringement, or fitness of a particular purpose. DiffusionData does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software or Third Party Code. DiffusionData gives no warranties that no harm will be caused by the transmission by the Software and the Third Party Code or from its website of a computer virus, worm, time bomb, logic bomb, or other such computer program. DiffusionData further expressly disclaims any other warranty or representation to the Licensee or to any third party.
6.3 The liability of DiffusionData to the Licensee, whether in contract, tort or otherwise, in relation to the User License, to the Software and the provision of any other information hereunder to the Licensee or their use by the Licensee or by any other person, or the consequences of their use, is excluded to the maximum extent permitted under applicable law. In no event shall DiffusionData be liable for any loss or damage (including, without limitation, lost profits, business interruption, or lost information) rising out of the Licensee’s use of or inability to use the Software, even if DiffusionData has been advised of the possibility of such damages. In no event will DiffusionData be liable for loss of data, loss of profit or for indirect, special, incidental, punitive, consequential or other loss or damages based in contract, tort or otherwise. DiffusionData shall have no liability with respect to the content of the Software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, moral rights or the disclosure of confidential information.
6.4 By accepting the User License on these terms the Licensee acknowledges that the Software may not be free from defects.
6.5 DiffusionData’s liability under or in connection with this User License shall in no event exceed £2,500 in the aggregate provided that this clause 6.5 shall not exclude or limit DiffusionData’s liability for: (i) death or personal injury caused by the DiffusionData’s negligence; or (ii) fraud or fraudulent misrepresentation.
7 TERM AND TERMINATION
7.1 The User License shall expire on the last date of the Term (the “Expiry Date”). The User License may be extended beyond the Expiry Date by written agreement of DiffusionData.
7.2 DiffusionData may terminate the User License with immediate effect at any time upon written notice to the Licensee.
7.3 It is understood and agreed by the parties that clauses 3, 4, 5, 6, 7, 8.1, 8.6, 8.8 and 8.9 of the User License shall survive its expiry or termination and remain in full force and effect.
8 MISCELLANEOUS PROVISIONS
8.1 Waivers: A waiver of a breach or default under the User License shall not be a waiver of any other or subsequent breach or default. The failure or delay by either party in enforcing compliance with any term or condition of the User License shall not constitute waiver of such term or condition, unless such term or condition is expressly waived in writing.
8.2 Headings: The titles and headings used in the User License are intended for convenience only and shall not in any way affect the meaning or construction of any provision of the User License.
8.3 Assignment: The User License and the rights and obligations hereunder shall not be assignable by the Licensee without the prior written consent of DiffusionData.
8.4 Separate Entities: Nothing in the User License shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute either party as an agent of the other for any purpose whatsoever, and neither party shall have the authority or power to bind the other party, or to contract in the name of and create a liability against the other party in any way or for any purpose, unless explicitly instructed in writing to do so.
8.5 Notices: All notices, reports and other writings which are required to be given or submitted pursuant to the User License shall be in writing and delivered personally or sent by post, or by confirmed facsimile transmission, to the address that a party may from time to time notify to the other party. Any notice so sent shall be deemed to have been duly given: (i) if sent by personal delivery or courier, upon delivery at the address of the relevant party; (ii) if sent by pre-paid first-class post or recorded delivery from within the country in which the address is located, at 9.00 am on the second business day after posting; (iii) if sent by Airmail from outside the country in which the address is located, at 9.00 am on the tenth business day after posting; (iv) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; and (v) if sent by fax, upon confirmation of transmission.
8.6 Entire Agreement: The User License represents the entire understanding of the parties with respect to the subject matter hereof, and supersedes all proposals or agreements, oral or written, and all other communications between the parties related to the subject matter of the User License, including without limitation any representations or warranties made by either party hereto or its representatives. The User License may not be amended or modified except in a writing duly executed by the parties.
8.7 Third Party Rights: A person who is not a party to this User License shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this User License.
8.8 Governing Law: The parties hereto agree that the User License, including without limitation, all transactions affected hereunder, its validity and enforceability and all relationships between the parties in this connection shall be construed under and be governed in all respects by English law.
8.9 Jurisdiction: The parties hereby agree that any and all disputes arising out of or in connection with the User License shall exclusively submitted to and settled by English courts and the parties hereby submit to such exclusive jurisdiction.
