END USER SOFTWARE LICENCE
PLEASE READ THROUGH THIS AGREEMENT. IF YOU AGREE TO BE BOUND BY THIS AGREEMENT PLEASE CLICK YES AT THE END AT WHICH POINT YOU SHALL HAVE THE RIGHT TO AND SHALL BE ABLE TO INSTALL AND USE THE SOFTWARE IN ACCORDANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT YOU SHALL HAVE NO RIGHT TO NOR SHALL YOU BE ABLE TO INSTALL OR USE THE SOFTWARE.
This Agreement is entered into on the date set out in the Schedule between: -
1. The company, entity or individual whose name and address is set out in the Schedule ('the Licensee'); and
2. Genemation Limited (Company No. 4486488) of Incubator Building, Grafton Street, Manchester, M13 9XX, England ('Genemation').
Definitions of terms appearing herein in capital letters are set out in Clause 15 and/or elsewhere in this Agreement and/or in the Schedule. References herein to clauses and the Schedule and shall means the clauses in this Agreement and the Schedule attached at the back of this Agreement. The Schedule forms part of this Agreement.
1. LICENCE GRANT
1.1. Genemation grants to the Licensee a non-exclusive non-transferable licence during the Term to: -
1.1.1. allow Permitted Users located at the Site to use the Software solely on Permitted Computers and solely for the Purpose on the terms set out in this Agreement; and
1.1.2. use the Documentation in conjunction with the Software.
1.2. The Licensee's use of the Software and Documentation is governed by this Agreement.
1.3. The Licensee undertakes to comply with all applicable statutes, laws and regulations in respect of its use of the Software and Documentation pursuant to this Agreement.
2. LICENCE RESTRICTIONS
2.1. Unless otherwise agreed by Genemation in writing the Licensee may not: -
2.1.1. allow those who are not Permitted Users to use the Software or Documentation;
2.1.2. use the Software outside the Site or on computers which are not Permitted Computers;
2.1.3. copy, modify, adapt or translate the Software or Documentation nor reverse engineer, decompile, disassemble or attempt to discover the source code of the Software or the Key or convert or translate the Software or the Key to a human perceivable form or allow the Software to be combined with, or to become incorporated or integrated in, any other programs, software, tools or hardware except as the Purpose expressly specifies otherwise or as specifically agreed otherwise by Genemation in writing;
2.1.4. use the Software otherwise than in accordance with the Documentation;
2.1.5. distribute, license, sub-license, lease, lend, transfer or otherwise dispose of any interest in the Software or Documentation to any third party or otherwise allow other parties to use or have access to, the Software or Documentation;
2.1.6. use the Software in breach of the Key or alter the Key or use, alter or create licence files for or within the Software in breach of this Agreement;
2.1.7 use the Software, Documentation or Output other than solely for the Purpose; or
2.1.8. otherwise use the Software or Documentation in any manner not permitted by this Agreement.
3. LICENCE MANAGEMENT
3.1. The Key will set restrictions on usage of the Software as determined by Genemation in terms of the Permitted Users, Permitted Computers, Site and/or duration of the Term in each case in accordance with this Agreement and the Licensee will ensure that it and any Permitted Users adhere to these restrictions.
4. DELIVERY TERMS
4.1. Genemation shall deliver to the Licensee via the delivery mechanism set out in the Schedule the Software, the Key and the applicable Documentation on the delivery date set out in the Schedule subject to the Licensee providing Genemation with such information as may be reasonably needed by Genemation in respect thereof.
5. LICENCE AND SUPPORT FEES
5.1. No licence or support fees shall be payable by the Licensee to Genemation pursuant to this Agreement
6.1. Genemation shall provide the Licensee with the Support in the manner and of the type indicated in the Schedule.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. All Intellectual Property Rights and all other rights, title and interest whatsoever in the Software and the Documentation and any ideas, know-how and programs comprising enhancements or modifications to the Software which are developed by or on behalf of Genemation are owned by Genemation and/or Genemation's licensors. The content, structure, organisation and code comprised in the Software and the information in the Documentation are the valuable trade secrets, and Confidential Information, of Genemation.
7.2. Save as set out in Clauses 1 and 2, this Agreement does not grant the Licensee any rights in the Software or Documentation and the Licensee shall not acquire any ownership of or title to the Software or Documentation and the original and all copies (if any) of the Software and Documentation shall remain the property of Genemation.
7.3. The Licensee will ensure that all copies (if any) of the Software and Documentation at all times bear the proprietary and other notices contained in or on the original copy of the Software and Documentation supplied to the Licensee and shall not remove any proprietary notices, labels, or markings on the Software including any source code header files or otherwise.
7.4. Without prejudice to Clause 2.1, if the Licensee discovers any potential or actual fix for or improvement to or enhancements of the Software ('Improvements') it shall notify Genemation of that fact and provide reasonable details thereof as soon as reasonably practicable after such discovery. In consideration for the rights and licences granted to the Licensee by Genemation hereunder and the obligations assumed by Genemation hereunder (which the Licensee hereby acknowledges shall be sufficient and adequate consideration) the Licensee hereby assigns to Genemation by way of present and future assignment all Intellectual Property Rights and all other rights, title and interest whatsoever which shall or may in the future exist in and to all Modifications and, by way of further consideration for such assignment by the Licensee, Genemation hereby grants to the Licensee a royalty free non-exclusive non-transferable licence in respect of any Improvements on the same terms as set out in clause 1.1 in respect of the Software which licence shall become effective automatically upon such Improvements being discovered. In the event that any Improvements are discovered all references in this Agreement to 'Software' shall be deemed to include and apply equally to such Improvements (except for clauses 4.1 and 11 which shall not apply in respect of Improvements).
8.1. Each party agrees both during the Term and for a period of 3 years after the expiry or termination of the Term that it will not use or disclose to any third party any Confidential Information of the other except as permitted by this Agreement or as authorised by the other party in writing. Each party undertakes to use the same care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information of equal importance but in any event at least all reasonable care including the use of reasonable security precautions and the use of appropriate legally binding confidentiality agreements for those who may receive Confidential Information.
8.2. The confidentiality obligations in this Agreement shall not apply to any Confidential Information which is required to be disclosed by applicable law or order of a Court of competent jurisdiction or recognised stock exchange or government department or agency or other competent authority provided that prior to such disclosure the recipient party consults with the other party as to the proposed form, nature and purpose of the disclosure.
9. NO WARRANTY
9.1. THE SOFTWARE AND ANY SERVICES OR ADVICE PROVIDED BY GENEMATION IN CONNECTION WITH THE SOFTWARE IS PROVIDED 'AS IS' AND GENEMATION EXPRESSLY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.2 In no circumstances shall Genemation be responsible for or have any liability in connection with the nature and quality of the Output or for any damages or other losses (including all reasonable legal and other costs) that may be incurred or awarded or agreed to be paid to any third party in connection with the Output.
10. LIMITATION OF LIABILITY
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GENEMATION BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, GOODWILL OR DATA) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, (INCLUDING IN PARTICULAR THE FUNCTIONALITY (OR LACK THEREOF) OF ANY CODE CREATED USING THE SOFTWARE OR DOCUMENTATION), WHETHER BASED ON A CLAIM UNDER CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF GENEMATION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. Genemation does not seek to limit or exclude liability for death or personal injury arising from Genemation's negligence and all limitations and exclusions of liability set out in this Agreement shall not apply to such circumstances.
10.3. Genemation's entire liability in contract, tort, negligence or otherwise for damages or other liability in respect of any one incident or a series of connected incidents shall not, in any event, except as provided in Clause 10.2, exceed in aggregate £100.
10.4 The Licensee acknowledges and agrees that the provisions of clauses 9 and 10 are reasonable taking into account the limited nature of the licence and rights granted to the Licensee under this Agreement and the fact that no licence or support fees shall be payable by the Licensee to Genemation pursuant to this Agreement
11.1. Subject to the provisions of Clauses 10.1 and 11.2, Genemation will indemnify the Licensee against any damages or other losses (including all reasonable legal and other costs) that may be incurred or awarded or agreed to be paid to any third party in respect of any claim or action that the normal use of the Software infringes any Intellectual Property Rights of such third party. This indemnity shall not apply to any infringement arising:
11.1.1 from any alteration, modification or conversion of the Software by the Licensee or any third party or from the use of the Software in combination or integration with any other software, unless such alteration, modification, conversion or use in combination or integration is with Genemation's prior express written consent, and unless the Software would have infringed the Intellectual Property Rights of such third party irrespective of such alteration, modification or conversion or combination or integration with any other software;
11.1.2 in relation to the Output;
11.1.3 from any breach of the Licensee's obligations under this Agreement; or
11.1.4 from any use of the Software by the Licensee other than in accordance with the instructions of Genemation including the Documentation.
11.2. The indemnity above shall only be given on condition that: -
11.2.1 The Licensee gives written notice to Genemation of any such infringement forthwith upon becoming aware of the same; and
11.2.2 The Licensee gives Genemation the sole conduct of the defence to and settlement of any claim or action in respect of such infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of Genemation; and
11.2.3 The Licensee acts in accordance with all reasonable instructions of Genemation and gives Genemation such assistance as it shall reasonably require in respect of the conduct of the said defence and settlement including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.
11.3. In the event of such an infringement Genemation shall be entitled at its own expense and option either to: -
11.3.1 procure the right for the Licensee to continue using the Software; or
11.3.2 replace or modify the Software to render it non-infringing provided that there is no material loss of functionality; or
11.3.3 if none of the above alternatives are commercially feasible, terminate this Agreement.
11.4 Without prejudice to clause 11.1, the Licensee will indemnify Genemation against any damages or other losses (including all reasonable legal and other costs) that may be incurred or awarded or agreed to be paid to any third party in respect of any claim or action arising in connection with the Output on the condition that:
11.4.1 Genemation gives written notice to the Licensee of any such claim or action forthwith upon becoming aware of the same; and
11.4.2 Genemation gives the Licensee the sole conduct of the defence to and settlement of any such claim or action and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise any such claim or action except upon the express written instructions of the Licensee; and
11.4.3 Genemation acts in accordance with all reasonable instructions of the Licensee and gives the Licensee such assistance as it shall reasonably require in respect of the conduct of the said defence and settlement including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.
12. TERM AND TERMINATION
12.1. This Agreement shall commence on the date set out in the Schedule and shall continue for the Term specified in the Schedule unless terminated prior to that date as set out below.
12.2. Notwithstanding the above this Agreement shall terminate automatically: -
12.2.1 by mutual agreement of the parties in writing;
12.2.2 by either party giving notice to the other following a breach by the other of any obligation under this Agreement which is either (if not capable of remedy) a material breach or (if capable of remedy) not remedied within 7 days of such notice to the satisfaction of the first party; or
12.2.3 by either party giving notice to the other party if the other party becomes insolvent or is otherwise unable to pay its debts as they fall due within the meaning of S.123 Insolvency Act 1986 or if the other party has a receiver, administrative receiver or administrator appointed over any of its assets or goes into liquidation, is declared bankrupt or ceases to carry on business or anything equivalent to any of the foregoing in any jurisdiction happens in respect of the other party
12.3. Upon the expiry or prior termination of this Agreement for any reason the Licensee shall cease using the Software and Documentation and destroy or (at the request of Genemation) return to Genemation all copies (if any) of the Software (including copies of any and all storage media) and the Documentation and shall provide Genemation, if so requested, with written confirmation thereof. This obligation applies to all copies (if any) in any format or media whatsoever and whether partial or complete or merged into other software or materials or media.
12.4. Subject to the terms of this Agreement, any termination of this Agreement (howsoever arising) or expiry of this Agreement shall not affect any accrued rights or liabilities of either party nor any other rights of the terminating party in relation to the matter in giving rise to the termination nor shall it affect the coming into force or the continuance in force of any provisions of this Agreement which are expressly intended to or by reasonable interpretation intended to come into or to continue in force on or after such termination or expiry which shall include clauses 7 to 10 and 12 to 14.
13. GENERAL PROVISIONS
13.1. The parties shall agree the terms of any announcements relating to this Agreement in writing.
13.2. If any part of this Agreement is found void and unenforceable, it will not alter the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms and the parties shall substitute therefore a lawful and enforceable provision which so far as possible results in the same economic and commercial effects.
13.3. This Agreement represents the entire understanding between the parties and shall supersede any and all previous discussions, correspondence, understandings and communications (whether written or oral) between the parties with respect to its subject matter, provided that the terms of any non-disclosure agreement signed between the parties shall continue to apply to the extent not conflicting with the terms of this Agreement.
13.4. This Agreement may not be amended, varied, supplemented or otherwise modified except by an instrument in writing signed by all the parties.
13.5. The benefits and obligations of each party under this Agreement are personal and no party may assign, charge, transfer, sublicense or otherwise delegate all or any part of its benefits, rights or obligations hereunder without the prior written consent of the other party hereto save, in the case of Genemation, to any Associated Company.
13.6. Any notice given by either party hereunder shall be in writing and shall be sent by pre-paid first class post to the other party to its address set out in this Agreement or the Schedule or its principal place of business from time to time. Any notice served by post shall be deemed to have been served three days after posting.
13.7. Genemation shall not be liable to the Licenseefor any failure to perform or delay in performance of its obligations hereunder caused by any circumstances beyond its reasonable control including without limitation inaccessibility of the Internet, government action, war, act of God, all types of industrial disputes, lock-outs and strikes whether of its own employees or those of any third party.
13.8. There shall be no waiver of any term, provision, or condition of this Agreement unless such waiver is evidenced in writing and signed by the waiving party. No omission or delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative with and not exclusive of any rights or remedies.
13.9. The parties do not intend any provision of the Contract to be for the benefit of or enforceable by any third party under The Contracts (Rights of Third Parties Act) 1999 or otherwise except for by any licensors of Genemation.
14.1. This Agreement shall be construed in accordance with and governed by English Law, and each party agrees to submit to the exclusive jurisdiction of the English Courts.
14.2 Nothing in this Agreement shall prevent Genemation from taking equitable, injunctive or similar proceedings to enforce any of the obligations herein.
In this Agreement unless the context otherwise requires: -
'Associated Company' means a company which is in the same group as Genemation where 'group' means Genemation and its direct and indirect holding companies and subsidiaries, and any of their direct and indirect subsidiaries as defined in Section 736 et seq of the Companies Act 1985;
'Confidential Information' means trade secrets and non-public information including (but not limited to) financial, technical, operational, commercial, staff, management and other information, data, experience and know-how, customer and supplier information and databases, business strategies, business plans, internal systems, concepts, test results and software etc. However, Confidential information shall not include any information (i) which is public knowledge or which subsequently becomes public knowledge other than by any act or failure to act by the recipient party; (ii) which is already known to the recipient party (as evidenced by its written records) at the time when the parties first started discussions regarding the subject matter of this Agreement prior to this Agreement being signed by the parties and was not acquired directly or indirectly from the other party or is not otherwise subject to an obligation of confidentiality; (iii) which is acquired by the recipient party from any third party who did not acquire such information directly or indirectly from the other party in breach of any obligation of confidence; or (iv) which is independently developed by, or for the recipient party by a third party, without access to the Confidential Information;
'Documentation' means the related documentation, instructions and reference materials supplied with the Software on whatever media;
'Intellectual Property Rights' means, patents, copyright, tradenames, logos, brandnames, trademarks, design rights, database rights, know-how, moral rights and all similar and neighbouring rights in each case arising anywhere in the world, whether registered or unregistered, existing at any time now or in the future and including all applications, renewals, extensions and reversions for or of any of the foregoing;
'Key' means a security device in physical or electronic format which is either integrated into the Software or is an external device and which enables the Software to be accessed and used by Permitted Users on Permitted Computers at the Site during the Term as permitted by this Agreement and a Key may comprise a number of renewable security devices;
'Output' means any product or any other materials or output created and developed by the Licensee using the Software;
'Permitted Computers' means the computers located at the Site as specified in the Schedule on which the Permitted Users are entitled to use the Software in accordance with this Agreement;
'Permitted Users' means the Licensee or such employees of the Licensee whose normal place of work is within the Site as are specified in the Schedule;
'Purpose' means the purpose for which Genemation is licensing the Software and Documentation to the Licensee in accordance with this Agreement as specified in the Schedule;
'Site' means the single business premises of the division or business unit of the Licensee or at such other address of the Licensee at which the Software is to be used as specified in the Schedule;
'Support' means the support and maintenance services described in the Schedule;
'Software' means the object code of the version of the Software described in the Schedule in the format provided to the Licensee hereunder which shall include supporting files and data;
'Term' means the duration of this Agreement (subject to prior termination in accordance with this Agreement) as specified in the Schedule;
To the Genemation End User Software Licence
Date: Date of installation of the Software
Licensee name/address: the company, institution or individual on whose behalf you are entering into this EULA
Software: GenHead 3.0 evaluation
Software, Documentation & Key Delivery Mechanism: Software and Documentation (if any) delivered on CD or via download. The Key may be either enclosed with the CD, or delivered separately by email.
Software, Documentation & Key Delivery Date: Date of installation of the Software
Support: No right to support or any updates or upgrades is given but Genemation may at its discretion offer support through e mails sent to email@example.com
Permitted Users: One only - the Licensee
Permitted Computers: One
Site: The usual location of the Permitted Computer
Purpose: Solely for evaluation of the Software to determine whether the Licensee wishes to purchase a full licence to use the Software which shall governed by Genemation's full End User Licence Agreement in the form which Genemation shall provide or make available to the Licensee on request. Except for the aforementioned, limited purposes, the Licensee has no right to make any use of the Software or Documentation whether such use is for commercial, academic or personal purposes
Term: 30 calendar days from the date of installation of the Software
IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT CLICK 'YES' BELOW AT WHICH POINT YOU SHALL HAVE THE RIGHT TO AND SHALL BE ABLE TO INSTALL AND USE THE SOFTWARE IN ACCORDANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE CLICK 'NO' IN WHICH CASE YOU SHALL HAVE NO RIGHT TO NOR SHALL YOU BE ABLE TO INSTALL OR USE THE SOFTWARE.