IF YOU HAVE ENTERED INTO A SOFTWARE LICENCE AND MAINTENANCE AGREEMENT WITH PUSH TECHNOLOGY LIMITED FOR THE VERSION OF THE DIFFUSION SOFTWARE THAT YOU HAVE DOWNLOADED, THE TERMS OF SUCH LICENCE SHALL APPLY TO YOUR USE OF THIS SOFTWARE AND THE TERMS OF THIS USER LICENCE WILL NOT APPLY TO YOU. IF YOU HAVE NOT ENTERED INTO A SOFTWARE LICENCE AND MAINTENANCE AGREEMENT WITH PUSH 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 LICENCE.
IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS OF THIS USER LICENCE CAREFULLY BEFORE CONTINUING. THE LICENCE 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 LICENCE 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) Push Technology Limited (“PUSH”) is the owner of or has exclusive rights to the “Software” (being PUSH’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 licences, which are not part of the Software. A list of Third Party Code can be found in the product manual together with the licences 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 licence 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 licence to the Software (“Evaluation”).
(C) PUSH is willing to grant a licence to the Licensee to use the Software on the terms of this User Licence.
AGREED TERMS
1 USER LICENCE
PUSH grants to the Licensee a non-exclusive, non-transferable limited licence for fourteen days or such other period as may be agreed by PUSH 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 PUSH to carry out the Evaluation in accordance with the terms and conditions of this User Licence. The Term shall commence on the date upon which the Licensee downloads the Software.
2 PUSH’S OBLIGATIONS
2.1 PUSH shall either provide the Licensee with a key to the Software or such password and/or authentication key to enable the Licensee to access PUSH’s hosted system to enable the Licensee to use the Software in accordance with this User Licence.
3 LICENSEE’S OBLIGATIONS
3.1 Upon PUSH’s request and in any event upon expiry of the Term, the Licensee shall immediately cease to use the Software and when requested by PUSH, an officer of the Licensee shall uninstall it from its systems. The Licensee shall certify in writing to PUSH, 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 Licence;
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 PUSH, 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 Licence.
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 PUSH in accordance with any instructions PUSH 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 PUSH and shall not, without obtaining PUSH’s prior written consent, disclose or supply the Software or any passwords or authentication keys provided by or on behalf of PUSH, 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 PUSH in accordance with the highest standards of skill and care and in compliance with all applicable laws;
3.4.6 use appropriate ant-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 PUSH the Licensee shall furnish PUSH 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 Licence.
3.6 PUSH 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 Licence, for the purposes of ensuring that the Licensee is complying with the terms of the User Licence provided that PUSH provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times. Without prejudice to PUSH’s rights to access the premises as set out in this clause 3.6, where the Software allows for PUSH to audit the Licensee’s use of the Software remotely, PUSH 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 Licence, the Licensee shall pay the cost of the audit and shall be invoiced at the then current list price payable for a licence 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 licence 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 licences.
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 Licence.
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 PUSH or the Licensee, including but not limited to, all intellectual property rights therein shall be and remain vested in and with PUSH and the Licensee hereby assigns the same with full title guarantee and free from encumbrances to PUSH. 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 PUSH and shall do all things reasonably required by PUSH to ensure such rights are properly protected and vested in PUSH.
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 PUSH to the Licensee shall be the confidential information of PUSH. 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 Licence. 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 Licence.
6 WARRANTIES, INDEMNITIES AND DISCLAIMER OF WARRANTIES
6.1 The Licensee undertakes to indemnify and hold PUSH harmless against any and all liability, losses, costs and expenses (including without limitation any legal fees and costs), either incurred by PUSH 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 PUSH;
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 Licence by the Licensee or its employees, agents or contractors.
6.2 To the extent permitted by applicable law, PUSH 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. PUSH 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. PUSH 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. PUSH further expressly disclaims any other warranty or representation to the Licensee or to any third party.
6.3 The liability of PUSH to the Licensee, whether in contract, tort or otherwise, in relation to the User Licence, 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 PUSH 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 PUSH has been advised of the possibility of such damages. In no event will PUSH 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. PUSH 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 Licence on these terms the Licensee acknowledges that the Software may not be free from defects.
6.5 PUSH’s liability under or in connection with this User Licence shall in no event exceed £2,500 in the aggregate provided that this clause 6.5 shall not exclude or limit PUSH’s liability for: (i) death or personal injury caused by the PUSH’s negligence; or (ii) fraud or fraudulent misrepresentation.
7 TERM AND TERMINATION
7.1 The User Licence shall expire on the last date of the Term (the “Expiry Date”). The User Licence may be extended beyond the Expiry Date by written agreement of PUSH.
7.2 PUSH may terminate the User Licence 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 Licence 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 Licence 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 Licence 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 Licence are intended for convenience only and shall not in any way affect the meaning or construction of any provision of the User Licence.
8.3 Assignment: The User Licence and the rights and obligations hereunder shall not be assignable by the Licensee without the prior written consent of PUSH.
8.4 Separate Entities: Nothing in the User Licence 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 Licence 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 Licence 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 Licence, including without limitation any representations or warranties made by either party hereto or its representatives. The User Licence 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 Licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this User Licence.
8.8 Governing Law: The parties hereto agree that the User Licence, 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 Licence shall exclusively submitted to and settled by English courts and the parties hereby submit to such exclusive jurisdiction.