End User Licence Agreement ("Licence Agreement")
1. Definitions
1.1 In this Licence Agreement the following words have the following meanings:
Business Day: any day which is not a Saturday, Sunday or public holiday
in England;
Commencement
Date: the commencement date specified in the Contract or the date of
download of the Software, whichever is the earlier;
Contract: the contract between (1) DISPLAYDATA or a Reseller and
(2) Customer, for the sale of Products;
Customer: the person (s), firm or company who purchases the Products from
DISPLAYDATA or a Reseller;
DISPLAYDATA: Displaydata Limited, a company registered in England and
Wales with company number 03929602 whose registered office
address is Malvern Hills Science Park, Geraldine Road, Malvern,
Worcestershire WR14 3SZ;
Documentation: documents provided for the Software in either printed text or
machine readable form including the technical documentation,
program specification and operations manual;
Hardware: DISPLAYDATA's hardware products as specified in the Sales Order
Confirmation;
Intellectual
Property: any patent, copyright, design right, registered design,
trade mark, service mark, domain name, know-how, utility model,
unregistered design and other industrial or intellectual property
rights (whether registered or unregistered) subsisting throughout
the world and all applications for the same, subsisting anywhere
in the world;
Licence Fee: the fee payable by the Customer to DISPLAYDATA or the Reseller
for the right to access and use the Software;
Licence Term: the term of the licence as specified in the Contract or the
Sales Order Confirmation;
New Release: any new version of the Software which from time to time is
publicly marketed and offered for purchase by DISPLAYDATA in the
course of its normal business, being a version which contains
such significant differences from the previous versions as to be
designated by DISPLAYDATA as a major release;
Premises: the Customer's premises as detailed in the Sales Order
Confirmation;
Products: any DISPLAYDATA products comprising of the Hardware
and the Software (including any part or parts of them);
Reseller: any third party that sells the Products;
Sales Order
Confirmation: the form issued by DISPLAYDATA and setting out details of the
Products to be supplied;
Services: the Standard Support Service and the Updating Service as defined
in the Contract;
Software: DISPLAYDATA's software products as specified
in the Sales Order Confirmation;
Support
Agreement: the agreement between (1) DISPLAYDATA or a Reseller
and (2) the Customer pursuant to which DISPLAYDATA or the
Reseller provides support services for the Software;
Warranty
Period: the warranty period set out in clause 5.1.
The headings in this Licence Agreement shall not affect its interpretation.
2. Licence
2.1 In consideration of the purchase by the Customer of Products from
DISPLAYDATA or a Reseller, DISPLAYDATA grants the Customer a
non-exclusive, non-transferable, revocable licence to use the Software
in object code form and the Documentation for the duration of the Licence
Term on the terms and conditions of this Licence Agreement ("Licence").
If the Software Licence is accepted by a third party on behalf of
the Customer (including acceptance by a Reseller or DISPLAYDATA),
Customer represents that it has given authority to the third party
to bind the Customer to the terms of this Licence. If at any time
the Customer is not willing to be bound by the terms of this Licence,
it should immediately terminate the download and/or installation process,
immediately cease and refrain from accessing or using the Software
and delete any copies it may have.
3. Term and Termination
3.1 The Licence shall commence on the Commencement Date and shall continue for
the Licence Term unless earlier terminated in accordance with clause 3.2.
3.2 DISPLAYDATA may immediately at any time terminate this Licence Agreement
by notice in writing to the Customer if:
3.2.1 the Customer commits a material breach of any provision of this Licence
Agreement and in the case of such a breach which is capable of remedy
fails to remedy such breach within 14 days after receiving notice of
the breach from DISPLAYDATA; and/or
3.2.2 the Customer is unable to pay its debts as they fall due, makes an
assignment for the benefit of creditors or is the subject of any
bankruptcy or the appointment of a receiver, administrator, or
liquidator by or against the Customer, or the Customer enters into a
corporate voluntary arrangement or suspends or ceases to carry on
business or Customer suffers or undergoes any procedure analogous to
any of the events described in this sub-clause 3.2.2 or any steps are
taken in respect of any of these events.
3.3 Upon termination of this Licence Agreement, the Customer shall immediately
cease to use the Software and the Documentation for any purpose.
3.4 On the termination or expiry of the Licence Agreement for any reason
the Customer shall, at the request of DISPLAYDATA, promptly and at its
own expense return to DISPLAYDATA or destroy (at DISPLAYDATA's option)
all physical copies of the Documentation and Software, and shall
permanently erase all copies of the Documentation and Software stored on
any computer equipment under the Customer's control.
4. Obligations of Customer
4.1 The Customer shall not:
4.1.1 use the Software or the Documentation other than in connection with
the operation of the Hardware and in the normal course of the Customer's
business;
4.1.2 sell, sub-licence, transfer or distribute the Software in whole or
part, or allow the Software to be used by any person who is not
involved in the operation of the Hardware for the purposes of the
Customer's business;
4.1.3 decompile, disassemble, reverse engineer or otherwise attempt to
discover any source code contained in the Software except to the extent
that (by virtue of section 296A of Copyright, Designs and Patents Act
1988) such actions cannot be prohibited because they are essential for
the purpose of achieving inter-operability of the Software with another
software program and provided that the information obtained by the
Customer during such activities is only used for the purpose of
achieving such inter-operability and the Customer must not disclose the
information to any third party to whom it is not necessary to disclose
or communicate it or use the information to create any software which
is substantially similar to the Software;
4.1.4 except with DISPLAYDATA's prior written consent, amend, develop,
translate, merge or modify the Software and/or Documentation in any way;
4.1.5 make any copies of the Software, except that it may make up to two
copies of the Software for security or back-up purposes only; or
4.1.6 make any copies of, or disclose the contents of, the Documentation save
as reasonably necessary for its lawful use in accordance with the
terms of the Contract.
4.2 If DISPLAYDATA releases a New Release and the Customer decides not to
acquire and install such New Release, that decision shall not give rise
to any right to terminate this Agreement, nor shall it result in any
adverse effect on the Licence or the performance of DISPLAYDATA's
obligations under this Agreement. However, if DISPLAYDATA has released a
second New Release (the "Second New Release") since the New Release and
the Customer has not, within six months acquired and installed either
the New Release or the Second New Release, the Customer acknowledges
and agrees that:
4.2.1 DISPLAYDATA shall not be responsible for any damage, loss or costs
whatsoever suffered by Customer arising from the failure of the
Software or Hardware which would not have occurred had the Second New
Release been installed; and
4.2.2 DISPLAYDATA and/ or the Reseller (as applicable) shall be entitled to
withdraw the provision of the Services.
4.3 The Customer acknowledges that it is licensed to use the Software and
Documentation only in accordance with the express terms of this Licence
Agreement.
4.4 The Customer undertakes to maintain records identifying the location where
the Software is installed and used and to promptly make such records
available to DISPLAYDATA on reasonable notice during normal business
hours.
4.5 The Customer warrants that, the Software and Documentation and all copies
of the same will remain under its control and that it will take all
reasonable precautions to safeguard the Software and Documentation against
unauthorised use.
5. Limited Software Warranty
5.1 DISPLAYDATA warrants to the Customer that, for a period of 90 days from
the date on which the Software is delivered to the Customer, the Software
will perform substantially in accordance with the Documentation.
5.2 The Customer's sole remedy and DISPLAYDATA's obligations under this
limited warranty shall be limited to, at DISPLAYDATA's sole option, repair
or replacement of the defective Software, provided that the Customer makes
available all the information that may be necessary to assist DISPLAYDATA
in resolving the defect or fault.
5.3 Any replacement shall not extend the original Warranty Period. This
limited warranty shall not apply to Software which DISPLAYDATA reasonably
determines has been subject to misuse and/or to any defect or fault in the
Software which is a result of the Customer amending the Software or using
the Software in contravention of the terms of clause 4.1.
5.4 DISPLAYDATA does not warrant that the Customer's use of the Software will
be uninterrupted or error-free.
5.5 The warranty set out in clause 5.1 is the only warranty which shall be
given by DISPLAYDATA in relation to the Software and all warranties,
conditions and other terms implied by statute, common law, course of
dealing or otherwise are, to the fullest extent permitted by law, excluded
from this Licence Agreement.
6. Limitation of Liability
6.1 The Customer acknowledges that the Software has not been developed to meet
the Customer's individual requirements and it is the Customer's
responsibility to ensure that the Software meets its requirements.
6.2 Subject to clause 6.4, DISPLAYDATA shall not be liable to the Customer in
contract, tort (including negligence), by way of indemnity or otherwise
for any special, incidental, consequential, indirect, exemplary and/or
punitive damages or liabilities; lost profit; lost revenue; loss of use;
loss of goodwill; loss of reputation; loss of/or damage to data, costs of
recreating lost data; the cost of any substitute equipment, program, or
data; in all cases regardless of whether the possibility of such damages
or liabilities have been communicated to DISPLAYDATA and regardless of
whether DISPLAYDATA has or gains knowledge of the existence of such
damages or liabilities.
6.3 Subject to clause 6.4, the cumulative, aggregate liability of DISPLAYDATA
(including without limitation costs awarded under this Licence Agreement)
to the Customer for all claims, liabilities and damages arising out of or
in relation to this Licence Agreement, whether in contract, tort
(including negligence), by way of indemnity, or otherwise, shall not
exceed the lowest of the aggregate Licence Fee paid by the Customer for
the provision of the Licence and the Services at the affected
Customer Store(s) in the 12 months immediately preceding the date of the
event giving rise to the liability or USD10,000.
6.4 Nothing in this Licence Agreement shall exclude or limit DISPLAYDATA's
liability for:
6.4.1 fraud or fraudulent misrepresentation;
6.4.2 personal injury or death caused by the negligence of its employees in
connection with the performance of their duties hereunder; or
6.4.3 any other liability that cannot be excluded by law.
7. Confidentiality and Publicity
7.1 Each party agrees that it shall, during the Licence Term and afterwards,
keep confidential all, and shall not use for its own purposes nor without
the prior written consent of the other disclose to any third party
information of a confidential nature (including, without limitation,
business affairs, product information, know-how, designs, trade secrets or
Software or any other information of commercial value) which may become
known to such party from the other party and which relates to the other
party, unless such information is public knowledge or already known to
such party at the time of disclosure, or subsequently becomes public
knowledge other than by breach of this Licence Agreement, or subsequently
comes lawfully into the possession of such party from a third party.
7.2 The obligations of confidentiality shall not apply to information that is
required to be disclosed by law provided that (to the extent legally
permissible) the receiving party gives the other party as much advance
notice of disclosure as reasonably possible.
7.3 The provisions of clause 7 shall remain in full force and effect
notwithstanding any termination of this Licence Agreement for any reason.
8. Intellectual Property
8.1 Customer acknowledges that all Intellectual Property in the Software and
the Documentation belong to DISPLAYDATA, that rights in the Software and
Documentation are licensed (not sold) to Customer, and that Customer has
no rights in, or to, the Software or the Documentation other than the
right to use them in accordance with the terms of this Licence Agreement.
For the avoidance of doubt, nothing in the Licence Agreement shall be
deemed to have given Customer a licence or any other right to use any
other Intellectual Property of DISPLAYDATA.
9. Waiver
9.1 No forbearance or delay by either party in forcing its rights shall
prejudice or restrict the rights of that party and no waiver of any such
rights or any breach of this Licence Agreement shall be deemed to be a
waiver of any other right or any subsequent breach.
10. Severability
10.1 If any provision of this Licence Agreement is held to be invalid or
unenforceable for any reason, such invalidity will not affect the rest of
the Licence Agreement which will continue in full force and effect.
11. Amendments
11.1 Any amendment, waiver or variation of this Licence Agreement shall not be
binding on the parties unless set out in writing, expressed to amend this
Licence Agreement and signed by or on behalf of each of the parties.
12.Third Party Rights
12.1 No term of this Licence Agreement is intended to confer a benefit on, or
to be enforceable by, any person who is not a party to it.
13. Non-Assignment
13.1 Customer may not assign, sub-license or otherwise transfer any of its
rights or obligations under this Licence Agreement, and any attempt at
such assignment or transfer will be void without the prior written consent
of DISPLAYDATA.
13.2 DISPLAYDATA may assign, transfer or subcontract any of its rights and
obligations under this License Agreement to a third party.
14. Notices
14.1 All notices or other communication required to be given under this Licence
Agreement must be in writing and delivered by hand or sent by pre-paid
first class post, airmail or recorded delivery to the address set out at
the beginning of this Licence Agreement or such other address as specified
by the relevant party by notice in writing to the other party.
14.2 Any notice or communication shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, airmail or recorded delivery,
at 9.00 am on the third Business Day after posting (in the case of
inland first class post) or seven Business Days after the date of
posting (in the case of airmail); or
14.2.2 if delivered by hand, on the day of delivery
15. Entire Agreement
15.1 This Licence Agreement and any document expressly referred to in it sets
out the entire agreement and understanding between the Customer and
DISPLAYDATA in connection with the licence of the Software and
Documentation and shall supersede and replace all previous agreements
and arrangements in relation to the licence of the Software and
Documentation.
16. Law and Jurisdiction
16.1 This Licence Agreement shall be governed by and be construed in all
respects in accordance with English law and all disputes or claims
(including non-contractual disputes or claims) arising out of or relating
to this Licence Agreement shall be subject to the exclusive jurisdiction
of the English courts to which the parties irrevocably submit, except that
DISPLAYDATA shall be entitled to enforce its rights in a court of
any jurisdiction.
Version: 1.26.0.5012