» version 2 - posted on 2006-02-27
EULA - End User License Agreement
END-USER LICENCE AGREEMENT
IMPORTANT : PLEASE READ CAREFULLY
This is a legal agreement between you, and Navigator Systems Limited (the
Licensor). By clicking on the I accept button you agree to be bound by the terms of
this Agreement in respect of the Software. If you do not accept these terms, you may
not install, copy or otherwise use the Software but may, within 28 days of purchase,
return the Software and the Copy Protection Token to the Licensor for a full refund of
any Licence Fees paid in respect of the Software.
In this Agreement unless inconsistent with the context or otherwise specified the
following definitions will apply:
Authorised Number means the number of Client Computers which may
access the Software at any one time, which number has been notified by the
Licensor in the Order Confirmation Notice as the same may be varied in
accordance with Clause 3.
Client Computers means any computers other than the Network Server used
for your own internal business purposes and which access the Copy Protection
Token, whether via a local area network, wide area network or the internet.
Copy Protection Token means the software copy protection device supplied
to you by the Licensor for use with the Software.
Documentation means the operating manuals, user instructions and other
related materials supplied to you by the Licensor (whether physically or by
electronic means) in respect of the Software including any part or copy of it.
Licence Fee means the fees payable by you in respect of the Licensed
Materials as specified in the Licensors invoice.
Licensed Materials means the Software, the Copy Protection Token, the
Documentation and the Media.
Media means the carrier media on which the Software and the Documentation
are recorded or printed and delivered to the Licensee.
Network Server means the computer that the Copy Protection Token is
Order Confirmation Notice means the order confirmation notice supplied by
the Licensor with the Licensed Materials.
Software means this computer program(s) in object code form only together
with any modifications or upgrades and any copies thereof but excluding all
source code and all preparatory design material.
2 GRANT OF LICENCE
Subject to the terms of the Agreement and provided that you have paid the
Licence Fee and the Copy Protection Token is correctly installed and running on
the Network Server, the Licensor hereby grants you the non-exclusive and nonassignable
right to install and run the Software on the Network Server and/or the
Client Computers provided that the number of copies of the Software running at
any one time does not exceed the Authorised Number.
The Authorised Number may only be varied with the Licensors written
agreement and subject to the payment by you of any applicable upgrade fees.
4.1 You are responsible for the installation of the Software in accordance with the
Documentation and any instructions issued by the Licensor.
4.2 Risk in the Media will pass to you on installation.
5 PERMITTED USE
5.1 You shall install and run the Copy Protection Token on the Network Server.
You shall not adapt or amend the Copy Protection Token and shall not interfere
in any manner with the current operation of the Copy Protection Token with the
5.2 You may only use the Licensed Materials for processing your own data for your
own internal business purposes. You shall not use or attempt to use the
Licensed Materials or any of the output of the Software or permit any third party
to do so:
(a) to provide a data processing or bureau service to any third party by way
of trade or otherwise; or
(b) contrary to any other restriction stated in this Agreement.
5.3 Save only to the extent that the same cannot be prevented by law, you shall not:
(a) translate or adapt the Licensed Materials for any purpose nor arrange or
create derivative works based on the Licensed Materials without the
Licensors express written consent.
(b) make for any purpose, including (without limitation) for error,
correction, any alterations, modifications, additions or enhancements to
the Software except as specifically described in the Documentation nor
permit the whole or any part of the Software to be combined with or
become incorporated in any other program except to the extent permitted
by clause 7 without the Licensors prior written consent.
(c) decompile, reverse-engineer, or disassemble the Software or permit
others to do so.
5.4 You shall not transfer or distribute (whether by licence, loan, rental, sale or
otherwise) all or any part of the Licensed Materials to any other person.
5.5 You may transfer the Software to another Network Server controlled by you
provided that the Software is not installed on more than one Network Server at
any one time.
6 EXTENT OF PERMITTED REPRODUCTION
6.1 You are permitted to make one back-up copy of the Software. Such copy will be
the property of the Licensor.
6.2 You shall not make or permit others to make any copies of the Documentation
without the Licensors prior written consent.
6.3 You shall keep such accurate and up to date written records of your use, copying
and disclosure of the Software as the Licensor may from time to time reasonably
require in writing or, in default of any specific requirement by the Licensor, then
in accordance with good data processing practice and shall allow the Licensor,
on request, to inspect and take copies of such records from time to time.
6.4 You shall make regular back-up copies of all data that you use in conjunction
with the Software in accordance with good data processing practice.
7 PROPRIETARY RIGHTS
7.1 Nothing in this Agreement shall assign or otherwise transfer to you any title,
copyright or other intellectual property or proprietary rights in the Licensed
Materials or any copies of them.
7.2 You agree not to remove, suppress or modify in any way any proprietary
marking, including any trade mark or copyright notice on or in the Software or
which are visible during its operation or which are in the Media or on any
Documentation. You shall incorporate such proprietary markings in any backup
7.3 You shall notify the Licensor immediately if you become aware of any
unauthorised access to, use or copying of any part of the Licensed Materials by
7.4 You shall permit the Licensor to check the use of the Licensed Materials by you
at all reasonable times. The Licensor may upon reasonable notice send its
representatives to any of your premises to verify compliance with this
Agreement and you irrevocably consent to the Licensors representative entering
your business premises and any other of your premises for this purpose.
8.1 You acknowledge that the Licensed Materials contain confidential information
of the Licensor and/or of third parties. You undertake to treat as confidential
and keep secret all information contained in or otherwise received from the
Licensor in connection with the Licensed Materials (collectively referred to as
the Confidential Information) and shall not use the same for purposes other
than using the Software in accordance with this Agreement. You shall effect and
maintain adequate security measures to safeguard the Licensed Materials from
unauthorised access, use or copying.
8.2 You shall not without the Licensors prior written consent communicate or
disclose any part of the Confidential Information to any person except:
(a) only to those employees on a need to know basis who are directly
involved in the use of the Software;
(b) your auditors and professional advisers.
8.3 You undertake to ensure prior to disclosure of any Confidential Information that
all persons or bodies mentioned in clause 8.2 are aware that the Confidential
Information is confidential and that they owe a duty of confidence to the
Licensor. You will indemnify the Licensor against any loss or damage which
the Licensor sustains or incurs as a result of your failing to comply with such
8.4 Any ideas and principles determined during the course of observing, studying or
testing the functions of the Software constitute Confidential Information subject
to this clause 8.
8.5 The provisions of this clause 8 will not apply to any Confidential Information
which is or becomes public knowledge other than as a result of your conduct.
8.6 This clause 8 will continue in force notwithstanding the termination of this
Agreement for any reason.
8.7 You acknowledge that the Licensor may use and exploit any ideas or
suggestions provided by you to the Licensor in respect of the Software without
payment or any further licence being required.
9 DEFECTS WARRANTY
9.1 The Licensor warrants that:
(a) the Software when properly used will substantially provide the facilities
and functions as described in the Documentation; and
(b) the Media on which the Software is furnished will be free from defects in
materials and workmanship for a period of 90 days from the date of
purchase. The Licensor does not warrant that the operation of the
Software will be uninterrupted or error free.
9.2 The Licensors obligation and your exclusive remedy under the warranty given
in clause 9.1 is limited to the Licensor at its own expense using all reasonable
endeavours to rectify any non-conformance with the warranty by repair (by way
of a patch, work around, correction or otherwise) within a reasonable period of
time or at the Licensors option replacing the Software or defective Media in
whole or in part.
9.3 The Licensor will have no liability or obligation under the warranty given in this
clause 9 unless it has received written notice from you of any non-conformance
with the warranty within 90 days from the date of purchase and provided that in
the reasonable opinion of the Licensor the Licensed Materials have not been
subjected to misuse, damage or excessive wear.
9.4 You acknowledge that the Licensed Materials have not been prepared to meet
your individual requirements and that it is your responsibility to ensure that the
facilities and functions of the Software meet your requirements.
9.5 The Licensor will not be liable for any failure of the Software to provide any
facility or function not described in the Documentation or for any failure of the
Software attributable to any modification (whether by alteration, deletion,
addition or otherwise) to the Software or the Client Computers by either you in
default of your obligations under this Agreement or by persons other than you or
by combination of the Software with other software or equipment without the
Licensors express prior written consent.
9.6 If a problem notified in accordance with clause 9.3 is found upon investigation
not to be the Licensors responsibility under the provisions of this clause 9, the
Licensor may charge you for all reasonable costs and expenses incurred by the
Licensor in the course of or in consequence of such investigation.
10 LIMITATION OF LIABILITY
10.1 You acknowledge that the Licensors obligations and liabilities in respect of the
Licensed Materials are exhaustively defined in this Agreement. You agree that
the express obligations and warranties made by the Licensor in this Agreement
are in lieu of and to the exclusion of any other warranty, condition, term,
undertaking or representation of any kind, express or implied, statutory or
otherwise relating to anything supplied or services provided under or in
connection with this Agreement including (without limitation) as to the
condition, quality, performance, merchantability or fitness for purpose of the
Licensed Materials or any part of them.
10.2 You are responsible for the consequences of any use of the Licensed Materials.
The Licensor will not be liable for any indirect or consequential loss, damage,
cost or expense of any kind whatever and however caused, whether arising
under contract, tort (including negligence), statutory duty or otherwise including
(without limitation) loss of production, loss of or corruption to data, loss of
profits or of contracts, loss of operation time and loss of goodwill or anticipated
savings, even if the Licensor has been advised of their possibility.
10.3 The Licensor does not exclude any liability to the extent that it results from the
negligence of the Licensor or its employees for death or personal injury.
10.4 The Licensors total liability (whether in contract, tort (including negligence),
statutory duty, or otherwise) under or in connection with this Agreement and any
other agreement with the Licensee relating to the Software or based on any
claim for indemnity or contribution will not exceed in aggregate a sum equal to
125% of the Licence Fee paid by you.
10.5 You agree that except as expressly provided in clauses 9 and 11 and this clause
10 the Licensor will not be under any liability of any kind whatever and however
caused arising directly or indirectly in connection with this Agreement. You
will indemnify the Licensor in respect of any third party claim for any injury,
loss, damage or expense occasioned by or arising directly or indirectly from
your possession, operation or use of the Licensed Materials except and in so far
as the Licensor is liable as expressly provided in this Agreement.
10.6 You acknowledge and agree that the allocation of risk contained in this clause
10 is reflected in the Licence Fee and is also a recognition of the fact that inter
alia, the Software cannot be tested in every possible combination and it is not
within the Licensors control how and for what purpose the Licensed Materials
are used by you.
11 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
11.1 Subject to clause 10, the Licensor will indemnify you for its reasonable costs
and all damages awarded under any final judgment by a court of competent
jurisdiction or agreed by the Licensor in final settlement to the extent the
Software as used in accordance with this Agreement and the Documentation
infringes the copyright or other intellectual property rights (other than patents)
of any third party, provided that:
(a) such infringement is not caused by or contributed to by your acts other
than the use of the Software in accordance with this Agreement and the
(b) the Licensor is promptly notified in writing of the details of the claim;
(c) the Licensor has sole control of the defence of such claim and all related
settlement negotiations; and
(d) you give the Licensor all reasonable assistance at the Licensors
reasonable expense in connection with such claim.
11.2 If at any time an allegation of infringement of any third party right is made, or in
the Licensors opinion is likely to be made, in respect of the Licensed Materials
the Licensor may at its own expense:
(a) obtain for you the right to continue using the Licensed Materials; or
(b) modify or replace the Licensed Materials so as to avoid infringement.
11.3 The Licensor will have no liability for any claim of infringement based on:
(a) use of other than the latest unaltered current release of the Software as
supplied to you;
(b) use or combination of the Software with equipment, programs or data not
supplied by the Licensor; or
(c) your refusal to use modified or replacement Licensed Materials supplied
or offered to be supplied pursuant to clause 11.2.
11.4 This clause 11 states the entire liability of the Licensor with respect to the
infringement or alleged infringement of any third party intellectual property
right of any kind by the Licensed Materials.
12.1 The Licensor may terminate this Agreement with immediate effect by written
notice if you:
(a) expressly or impliedly repudiate this Agreement by refusing or
threatening to refuse to comply with any of the provisions of this
(b) fail to comply with any of the provisions of this Agreement and (in the
case of a failure capable of being remedied) do not rectify such noncompliance
within 14 working days of the Licensors written notice of it;
(c) convene any meeting of creditors or pass a resolution for winding up or
suffer a petition for winding up;
(d) have an administrative receiver or receiver appointed over the whole or
part of your assets or suffer the appointment of an administrator; or
(e) being an individual commit any act of bankruptcy or compound with
your creditors or come to any arrangements with any creditors.
13 POST TERMINATION
13.1 On termination of this Agreement however caused your authorisation to use the
Licensed Materials will automatically cease and you undertake immediately to
cease to use the Licensed Materials and either return to the Licensor the
Licensed Material and all copies thereof, if requested by the Licensor, delete,
destroy or otherwise make permanently unusable the Licensed Materials and all
copies thereof within your control or possession.
13.2 Within 7 days of the date of termination, you shall through a director or other
officer certify to the Licensor in writing that you have fully complied with your
obligations under clauses 13.1.
13.3 Termination of this Agreement however caused will not affect the rights of
either party under this Agreement which may have accrued up to the date of
14 FORCE MAJEURE
Neither party will be liable for any delay in performing or failure to perform its
obligations (other than a payment obligation) under this Agreement due to any
cause outside its reasonable control. Such delay or failure will not constitute a
breach of this Agreement and the time for performance of the affected obligation
will be extended by such period as is reasonable.
This Agreement is personal to you and you may not sub-licence, assign or
otherwise transfer your rights or obligations under this Agreement without the
prior written consent of the Licensor.
All notices which are required to be given under this Agreement will be in
writing. Any such notice may be delivered personally by first class pre-paid
letter or facsimile transmission and will be deemed to have been received:
(a) by hand delivery at the time of delivery;
(b) by first class post 48 hours after the date of mailing;
(c) by facsimile transmission immediately on transmission provided a
confirmatory copy is sent by first class pre-paid post or by hand by the
end of the next business day.
If any part of this Agreement is found by a court of competent jurisdiction or
other competent authority to be invalid, unlawful or unenforceable then such
part will be severed from the remainder of this Agreement which will continue
to be valid and enforceable to the fullest extent permitted by law.
No delay or failure by either party to exercise any of its powers, rights or
remedies under this Agreement will operate as a waiver of them nor will any
single or partial exercise of any such powers, rights or remedies preclude any
other or further exercise of them. Any waiver to be effective must be in writing.
The remedies provide in this Agreement are cumulative and not exclusive of any
remedies provided by law.
19 ENTIRE AGREEMENT
19.1 This Agreement is the complete and exclusive statement of the agreement
between the parties relating to the subject matter of the Agreement and
supersedes all previous communications, representations and arrangements,
written or oral. You acknowledge that no reliance is placed on any
representation made but not embodied in this Agreement. The printed terms and
conditions of any purchase order or other correspondence and documents issued
by you in connection with this Agreement will not apply unless expressly
accepted in writing by the Licensor. Nothing in this Agreement shall exclude
any liability of the Licensor for fraudulent misrepresentation.
19.2 Except as otherwise permitted by this Agreement, no change to its terms will be
effective unless it is in writing and signed by persons authorised on behalf of
20 GOVERNING LAW
This Agreement will be construed in accordance with and governed by the law
of England and Wales and each party agrees to submit to the exclusive
jurisdiction of the courts of England and Wales. Headings have been included
for convenience only and will not be used in construing any provision in this