AVANITE END USER LICENSE AGREEMENT (EULA)
This license agreement is part of an agreement between you (the person or legal entity as specified below) and Avanite Limited which details the terms and conditions that Avanite software is licensed for use. By installing and using the software you agree to be bound by the terms detailed herein. YOU MUST NOT USE THIS SOFTWARE IF YOU OR YOUR EMPLOYER HAVE NOT ENTERED A CONTRACT WITH US FOR ITS USE OR IT IS USED ON AN EVALUATION BASIS. IF you do not agree with these terms then the software must not be installed, and all copies of the software must be returned. A contract will be binding once any license under an agreement is used.
By installing or otherwise using this Software you are agreeing to be bound by the terms of this Agreement. If you do not agree with the terms of this Agreement, then do not install or otherwise use this Software. By agreeing to be bound by this EULA you are also agreeing that any person you authorise to use the Software will also comply with the terms herein. Any person using the Software must comply with the terms of an Agreement.
Where the License Certificate specifies the name of a Reseller Your Agreement is with the Reseller through whom You have purchased this License. The Licensor is the provider of all licenses of the Software and authorises the Resellers to issue licenses for it on the terms set out in this EULA. The Licensor may take the benefit of all provisions of this Agreement that apply to it but where obligations are set out these should be delivered in the first instance by the Reseller, including any support services. If a Reseller is not able to meet any obligations, please contact the Licensor who may choose to assist.
The following terms shall have the meaning set out below unless the context indicates otherwise:
“Licensor” means Avanite Limited, a company incorporated in England and Wales, registration number 09699386, having it’s registered office at Front Suite, First Floor, 131 High Street, Teddington, Middlesex, United Kingdom, TW11 8HH.
“Affiliate” means any legal entity which controls, is controlled by, or is under common control with the Licensor where control refers to ownership of more than fifty percent (50%) of voting rights.
“User”/”You”/”Your” means the person named in the Licence Certificate under which the Licensor grants a right to use the software under this EULA or the person(s) using an Evaluation copy of the software.
“Software” means the object code form of the Avanite proprietary software products(s) licensed to you under this Agreement including any Documentation.
“Documentation” means any official product operating instructions, release notes and user manuals provided by the Licensor in electronic or written form.
“Applicable Laws” means all laws, regulations, and rules that apply to your use of the software and conduct in connection with the Agreement, in particular relating to applicable privacy, data protection, and anti-corruption laws in force at any time during the period of the Agreement.
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software.
“Individual User” means an individual agreed as a specified user by Us and authorized by You to use
“Client Materials” means all data, documentation, software, hardware and other materials which You
use in conjunction with the Software or make or may make available to the Licensor.
10. “License Certificate” means the certificate issued by the Licensor to the User setting out the details of the Software, the name of the client, the basis on which Individual Users are defined and the period
of the license.
11. “Agreement” means the agreement between the user and us made up of the License Certificate, any
payment terms and this EULA.
Headings of clauses are inserted for convenience only and shall not affect the interpretation or construction of the Agreement. Words imparting the singular shall include the plural and vice versa. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. References to persons include to an individual, company, corporation, firm or partnership. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
Any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible. References to in writing include by e-mail, fax and letter.
GRANT OF LICENSE
The Licensor grants the User from the date of supply a non-exclusive, non-sublicensable and non-transferable license to:-
Install and use the Software as required for use by Individual Users.
Permit Individual Users to access or use the Software. A license fee must be paid for each Individual
Make one unmodified copy of the Software solely for archival purposes.
Perpetual License. If the software is “Perpetual License Software” the Software is licensed on a
perpetual basis. You acknowledge and agree that any licenses purchased in addition to the initial purchase shall be considered as an expansion of the initial license grant and shall not constitute a separate license to the Software.
Subscription License. If the Software is “Subscription License Software” your license is valid only for the period of time for which you have subscribed, as specified on the License Certificate. To extend a Subscription license you must purchase a new license prior to the end of the expiration date of the current subscription period. If a new Subscription is not purchased then the Software is not licensed for use beyond the current subscription period and on expiry must be removed and returned to the Licensor, together will all Documentation.
Licenses are provided on either a named user or concurrent user basis. This is specified in the License Certificate which specifies the details for the Individual Users. Where a named user basis applies only the named Individual Users agreed are licensed to use the Software. Where a concurrent user basis applies the maximum number of Individual Users at specified times are set.
The license of the Software is granted on the following basis
The User may not sub-license or purport to sub-license any rights granted by the license unless by prior written consent from the Licensor.
The User shall use and/or access the software solely on behalf of and for the benefit of itself or your applicable Affiliate and in accordance with this Agreement.
You shall be responsible for all acts and omissions committed by an Individual User and shall ensure that all Individual Users shall comply with Your obligations.
The User will be responsible for the security of copies of the Software supplied to the User (or created copies) under this EULA and shall use all reasonable endeavours and security measures to ensure that access to them is restricted to persons authorised to use them under this EULA.
Nothing in this EULA shall give the User or any other person any right or access to the Source Code.
“Evaluation”. If the Software is identified or provided as “Evaluation” then You are permitted to use the software only for internal demonstration, test, or evaluation purposes and it must not be used in a production environment unless under prior agreement with the Licensor, and only for the period specified within the license key provided, (if not indicated then this period will be thirty (30) days from delivery of the software). You acknowledge and agree that the Licensor is under no obligation to permit further use of the Software past the end of the evaluation period.
“Not For Resale”. If the Software is identified as “Not For Resale” You may only use the software if You are an authorised Avanite partner or distributor, and then only for demonstration purposes. The license will terminate automatically You cease to become an Avanite partner or distributor. Any further use of Not For Resale Software must be agreed with the Licensor prior to its use. The Licensor reserves the right to terminate the license at any time and without prior notice, with or without cause.
The Licensor and its licensors retain all right, title and interest in and to all rights subsisting in the Software. You have no right to use such rights (or grant any sub-license in respect of the same) save as licensed by Us in accordance with the terms of an Agreement.
You retain all right, title and interest in the Client Materials. You grant to the Licensor for the period of Your license a non-exclusive, royalty-free license to use the Client Materials in performing it’s obligations pursuant to this Agreement.
You indemnify and shall keep indemnified the Licensor against all and any claims, actions, damages, losses, costs and/or expenses (including reasonable legal fees) that it suffers or incurs as a result of any action or claim that the use of the Client Materials infringes the rights of a third party.
You acknowledge and agree that the Licensor gives no warranties and/or indemnities in respect of the Software save as expressly set out in this Agreement.
You agree that where any claim is made against You for breach of any intellectual property right in relation to the Software You shall notify the Licensor and not make any admission of liability, agreement or compromise in relation to any claim without the prior written consent of the Licensor (such consent not to be unreasonably conditioned, withheld or delayed); and take such action as the Licensor may reasonably request to avoid, dispute or compromise or defend any claim Provided Always that You shall not be obliged to bring any legal proceedings in Your own name. Save where the claim relates to any change You have made to the Software, without the consent of the Licensor, the Licensor shall pay any reasonable legal expenses needed to meet its reasonable instructions in managing the claim.
The Licensor provides no warranty or representation that the receipt, possession and use of the Software shall not infringe any rights of a third party.
You acknowledge and agree that the Licensor supplies the Software “as is” and gives no warranty as to its use. Save as otherwise expressly provided for under this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
You shall keep exclusive possession of and control over the copies of the Software provided to You and shall effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person.
The licence is limited to the use of the Software upon Your own systems or as agreed by the Licensor. You acknowledge that an additional license fee is payable for any unauthorised use of the Software caused by Your failure to comply with the terms of this Agreement.
You shall notify the Licensor immediately if You become aware of any unauthorised use of the whole or any part of the Software by any person. You will permit the Licensor to check the use of the Software by the You at reasonable times and for that purpose the Licensor, its employees and agents shall be entitled to enter any of Your premises on giving reasonable notice.
Save to the extent and in the circumstances expressly permitted by law, You shall not alter, modify, adapt or translate the whole or any part of the Software in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.
In respect of Client Material, including any personal data, You shall ensure that You obtain all consents or other basis for processing needed for the Licensor to process the data and both parties shall comply with the Data Protection Legislation.
Where the Licensor processes data for You it shall do so on the basis of Your instructions and as intended in the working of the Software. The Licensor shall ensure that appropriate security is in place and processing is in accordance with the Data Protection Legislation in particular the requirements on data processors set out in paragraphs 3 and 4 of Article 28 of the General Data Protection Regulations with which it shall comply.
The Software is licensed and not sold and remains the property of the Licensor. You may not use the Software for any other use other than outlined in this agreement or as described in the Documentation. Save to the extent expressly permitted by this EULA or required by applicable law any license granted Is subject to the following restrictions: -
2. 3. 4.
5. 6. 7.
The User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
The User must not alter, edit, or adapt the Software;
The User must not create any derivative works of the Software (or any component thereof);
The User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de- obfuscate or reverse engineer, the Software;
The Software license key must not be disclosed to any third party;
The User must not circumvent or attempt to circumvent any software restrictions in the Software; The User must not remove or alter any proprietary notices or legends from the Software or Documentation, or any copies thereof;
The User must ensure that all Named Users, staff and any party accessing the Software from it complies with all requirements of this EULA.
retains all rights, title and interest, including all patent, copyright, trade secret, trademark, moral
Fees must be paid for the use of the Software and this license. The fees must be paid as set out by Us or Our Reseller as part of the Agreement.
SUPPORT AND MAINTENANCE
Except as outlined for “Subscription License Software” the Licensor does not provide any technical support or maintenance services for the Software or Documentation under this Agreement, and you have no rights to any updates, upgrades, enhancements or other modifications (collectively “Updates”) of the Software or Documentation unless you purchase Avanite Support and Maintenance services. All support and maintenance services are governed by the end of maintenance policy as displayed on the Avanite website. All support and maintenance services must be purchased at the same level and for the same number of licenses as the Software. Any Updates provided pursuant to the maintenance services shall be considered Software under the terms of this Agreement.
WARRANT AND DISCLAIMER
The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
The Licensor warrants to the User that for a period of ninety (90) days from the period of delivery of the Software license key the Software will perform substantially in accordance with the Documentation.
The Licensor warrants to the User that when the Software is used by the User in conjunction with this Agreement and as described in the Documentation it will not infringe on any Intellectual Property Rights of any person. If the Licensor determines that the use of the Software by the User in accordance with this EULA infringes on any persons Intellectual Property Rights the Licensor may, acting reasonably, and at its own cost and expense, modify the Software in such a way that it no longer infringes on those rights, providing that any such modifications do not introduce any known software defects into the Software, and does not result in the Software failing to conform with the Software specification.
The Licensor warrants to the User that when the Software is used in accordance with this EULA and as described in the Documentation, the Software does not breach any laws, statutes, or regulations under English Law.
All of the parties’ warranties and representations in respect of the subject matter of this EULA are expressly set out in this Agreement. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of this EULA will be implied into this Agreement or any related contract.
LIMITATION OF LIABILITY
To the maximum extent permitted by Applicable Law you agree that neither the Licensor or its Affiliates shall be responsible for any loss of income, loss of opportunity or profits, loss of goodwill, loss of data or from any damages arising from the use of the Software, or any updates or third party software arising from the use of this
rights and all other intellectual property rights to the Software. The Licensor reserves all rights not expressly granted under this EULA.
Software however so caused. On any theory of liability (including, without limitation, negligence) in the extent permitted by Applicable Law in no event shall the liability of the Licensor or its Affiliates exceed the amount paid for the Software. This limitation will apply even if the Licensor has been advised of such damages and regardless of whether any remedy fails of its essential purpose. You acknowledge that the license fees reflect this allocation of risk. Some jurisdictions do not allow for this limitation or exclusion of liability for incidental or consequential accidental damages so the above limitations may not apply to you.
During the term of this Agreement and for three (3) years after termination of the Agreement or support and maintenance services for the applicable Software, You shall maintain accurate and complete records regarding Your use of the Software and You shall permit the Licensor (or persons authorised by the Licensor) to inspect such records and Your computer equipment in order to verify that Your use of the Software is in compliance with this Agreement and that You have paid the applicable license fees and support service fees for the Software. The Licensor may not conduct an audit more than once per calendar year and such audits shall take place during normal business hours and on reasonable prior notice. Without prejudice to any other rights and remedies, where such audit reveals any underpayment is more than (5%) of the amounts payable by You for the audited period you shall promptly reimburse the Licensor for the reasonable costs associated to the audit.
You agree to hold harmless, indemnify, or at its option, settle, any claim, suit or proceeding brought against the Licensor, its Affiliates and their respective employees, officers and directors (“Avanite Indemnitee(s)”) alleging that: (i) Your use of the Software in violation of this Agreement infringes upon any patent or copyright of any third party; or (ii) violates Applicable Laws, and You shall pay all third party costs and damages awarded in judgment of such claim or agreed to in settlement of such claim between You and such third party; provided that Avanite Indemnitee(s): (a) provide You with prompt notification of the claim, such that You are not prejudiced by any delay in such notification; and (b) provide reasonable assistance in connection with the defence or settlement, at your expense.
You may terminate this Agreement without refund at any time by removing the Software from your computers and destroying all copies and providing written notice to the Licensor. The Licensor may terminate this Agreement in the event that you breach this Agreement and (if such breach is capable of remedy) You fail to remedy such breach within 30 days from the Licensor’s notice to You. Upon termination of this Agreement, the license granted herein will terminate and You must immediately remove and destroy all copies of the Software, including all back-up copies, providing written evidence to the Licensor. Any obligations to pay fees incurred prior to termination shall survive termination for any reason.
In the event of any dispute or difference between the parties arising out of an Agreement, the parties shall use their reasonable endeavours to seek a resolution to such dispute.
Neither party shall be in breach of any Agreement nor liable for delay in performing, or failure to perform, any of its obligations under any such contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations provided that if the period of delay or non-performance continues for 3 months, the party affected may terminate the Agreement by giving 30 days' written notice to other party.
The User may not assign, sub-contract or otherwise transfer the Agreement (or any part of such), to any third party, without the prior written consent of the Licensor. The Licensor may at any time assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under an Agreement, or any part thereof.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable at law, then such provision shall be severed and the remainder of the Agreement shall continue in full force and effect.
Save for the Licensor where it is not a party, the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no other party who is not a party to the Agreement shall have any right to enforce any term of the agreement.
Any purported variation or amendment to an Agreement shall be of no effect, unless confirmed in writing and signed by an authorised representative of each party.
The waiver by either party of any breach of an Agreement by the other party in a particular instance shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind. No failure or delay by either party in exercising or enforcing any of its rights under any Agreement shall
be deemed to be a waiver of such rights, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Nothing in any Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
The Agreement constitutes the entire understanding between the parties and, save as expressly referred to or referenced therein, supersedes, replaces and extinguishes all prior representations, writings, negotiations or understandings oral or written relating to the subject-matter. Each party acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in the Agreement and that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement not in the Agreement.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with an agreement or its subject matter or formation (including non-contractual disputes or claims).