SMARTset End User Licence Agreement – Version updated May 2019
IMPORTANT – PLEASE READ CAREFULLY – THIS 4NG END USER LICENSE AGREEMENT (“EULA”) IS A BINDING LICENSE AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL, A SINGLE COMPANY, OR OTHER SINGLE LEGAL ENTITY) AS LICENSEE (“LICENSEE”) AND 4NG LIMITED AND/OR ITS DIRECT/INDIRECT SUBSIDIARIES AS SET OUT IN THE QUOTATION ISSUED TO YOU (“4NG”) AS LICENSOR. YOU AGREE THAT, AT SUCH TIME AS YOU INSTALL, COPY, EXECUTE, AND/OR USE ANY 4NG SOFTWARE, DOCUMENTATION, AND/OR OTHER INTELLECTUAL PROPERTY ACCOMPANYING, OR AUTHORIZED BY 4NG IN WRITING FOR YOUR USE PURSUANT TO, THIS EULA (“EFFECTIVE DATE”), YOU WILL BECOME LEGALLY BOUND BY ALL PROVISIONS OF THIS EULA.
Whereas, The Licensee licenses software owned by 4NG Limited and its affiliated companies and licensors;
Now Therefore, the Licensee desires to obtain from 4NG, and 4NG desires to grant to Licensee, certain licenses to use the specific software and documentation described in this EULA. Accordingly, in consideration of the mutual promises contained herein and of other good and valuable consideration, 4NG and the Licensee agree as follows:
1 Definitions
“Affiliate” means any entity controlled by, controlling, or under common control with a party to this EULA. Control shall exist through ownership, directly or indirectly, of a majority of the outstanding equity capital and of the outstanding shares or other securities entitled to vote generally in elections of directors or similar officials. If an entity ceases to meet this criteria, it shall cease to be an Affiliate under this EULA;
“Applicable License Model Schedule” for each individual Software License means the version of the schedule entitled
“License Model Schedule” posted at www.4ng.co.uk/agreements which was in effect on the effective date of the applicable Order Document. All Applicable License Model Schedules shall be deemed to be incorporated by this reference into this EULA;
“Applicable Taxes” means the sales, use, consumption, goods and services, and value-added taxes imposed by the appropriate governments arising out of granting of licenses and shipment of Software under this EULA, except taxes imposed on 4NG’s income;
“Attribution Notices” has the meaning set out in section 13.12;
“Claim” has the meaning set out in section 10.1;
“Covered Countries” means the United Kingdom, the Republic of Ireland, Canada, the United States, France, Spain, Italy, Austria, Belgium, the Netherlands, Sweden, Denmark, Finland, Norway, Switzerland, Germany, Australia, and New Zealand;
“Cure Period” has the meaning set out in section 12.2;
“day” means a calendar day;
“Delivery Point” has the meaning set out in section 6.3;
“Distributor” has the meaning set out in section 6.2;
“Documentation” means user guides, operating manuals, and release notes in effect as of the date of shipment of the applicable Software, that are authorized by 4NG for general release to 4NG licensees of such Software;
“Effective Date” is the date set out above;
“License Fees” means the non-refundable (save and except for refunds identified in sections 9.2 and 10.2) fees payable by Licensee to 4NG (or Distributor or Reseller) with respect to the granting of Software Licenses hereunder;
“License Model” means the description of the conditions, limitations and restrictions associated with the Software License which govern the use of the Software;
“Order Document” has the meaning set out in section 6.1 or section 6.2 (as the case may be);
“Product Description” means the description of the features and purpose of the Software set out in the “Products” area of 4NG’s public website found at www.4ng.co.uk;
“Reseller” has the meaning set out in section 6.2;
“Source Code Format” means the source (or human readable) format of the Software when it has not been compiled and is not in a machine readable state. Examples include, but are not limited to Java, JavaScript, XML, HTML, CSS, and Velocity.
“Software” means any and all software products as well as Documentation and Support Software licensed by 4NG to Licensee hereunder, including all copies thereof made by Licensee;
“Software License” means a license granted under this EULA by 4NG to the Licensee with respect to the Software;
“Support Software” means all maintenance and/or support software, updates, upgrades, patches, fixes and/or new versions of the Software provided to Licensee pursuant to an 4NG maintenance and/or support program, together with all related Documentation provided to Licensee pursuant to such program;
“Term” has the meaning set out in section 12.1;
“Third Party Software” has the meaning set out in section 13.13.
2 Ownership of the Software
Ownership. The Software is protected by English, Canadian, United States, and other national and international copyright laws and treaties, as well as other laws and treaties. The Software is a trade secret of 4NG Limited, its Affiliates and/or its licensors, and is their confidential information. None of the Software is being sold. All ownership, license, intellectual property, and other rights and interests in the Software shall remain solely with 4NG Limited, its Affiliates or its licensors.
3 License Grant
3.1 Grant of License.
4NG grants to Licensee a perpetual (subject to the termination provisions in section 12), nonexclusive, non-assignable (save and except for the assignment provisions set out in section 13.5), non-transferrable, non-sublicenseable, world-wide (save and except for applicable export restrictions identified in section 13.10) license to download, install and execute the Software identified in the applicable Order Document subject to: a) the quantities of Software Licenses identified in the applicable Order Document, b) the restrictions, conditions and limitations associated with the applicable License Model, c) the product specific use restrictions and/or limitations set out in the Applicable License Model Schedule and applicable Order Document, d) the restrictions, conditions and limitations set out in the applicable Order Document or Documentation, and e) the restriction that the Software may only be used in a manner consistent with the intended purpose of the Software as described in the Product Description. Notwithstanding the above, in the event that the applicable License Model or the applicable Order Document indicate that the Software License has a limited term specified in months or years, such a Software License shall not be perpetual.
3.2 Applicable License Models.
The only License Models that are applicable to each individual Software License are the License Models identified and described in: a) the Applicable License Model Schedule, and b) the applicable Order Document.
3.2.1 For a License Model description found in the applicable Order Document to be effective, it must include the following details: a) the basis of the License Model (ex. named user, concurrent user, anonymous user, server, CPU, instance, etc.), b) if there is any limitation on the use of the Software, c) if additional Software Licenses are required to be purchased in conjunction with the Software License being purchased (ex. server licenses are required in conjunction with named user licenses), and d) if the use of the Software is restricted to employees or contractors of the Licensee.
3.2.2 If a License Model description found in the applicable Order Document satisfies the requirements of section 3.2.1, and there is also a description found in the Applicable License Model Schedule for the same License Model, then the description found in the applicable Order Document prevails to the extent of any inconsistency.
3.2.3 If a License Model description found in the applicable Order Document does not satisfy the requirements of section 3.2.1, but there is a description found in the Applicable License Model Schedule for the same License Model, then the description found in the Applicable License Model Schedule prevails to the extent of any inconsistency.
3.2.4 If a License Model description found in the applicable Order Document does not satisfy the requirements of section 3.2.1, and there is no description found in the Applicable License Model Schedule for the same License Model, then the following provisions apply: a) License Models that refer to “named users” or “users” are deemed to be the Standard Named User License Model, b) License Models that refer to “concurrent users” are deemed to be the Standard Concurrent User License Model, c) License Models that refer to “anonymous users” are deemed to be the Standard Anonymous User License Model, d) License Models that refer to “server” are deemed to be the Standard Server License Model, e) License Models that refer to “cpu” or “central processing unit” are deemed to be the Standard CPU License Model, and f) License Models that refer to “instance” are deemed to be the Standard Instance License Model. For the purposes of this section 3.2.4, the applicable descriptions and definitions of Standard Named User License Model, Standard Concurrent User License Model, Standard Anonymous User License Model, Standard Server License Model, Standard CPU License Model, and Standard Instance License Model, shall be those descriptions and definitions set out in the Applicable License Model Schedule.
3.2.5 If no License Model is identified in the applicable Order Document, the applicable License Model is deemed to be the Standard Named User License Model, as set out in the Applicable License Model Schedule.
3.3 Modification of the Applicable License Model Schedule.
The parties may modify, add, remove or otherwise amend the description of the License Models with a written amendment to this EULA. Any amendments must be in writing and signed by both parties. Unless otherwise provided for in an amendment or schedule, previously granted Software Licenses shall be governed by the description and definition of the Licenses Model found in the Applicable License Model Schedule.
3.4 Allocation of Licenses to Affiliates.
Unless prohibited under the applicable License Model, the Licensee may allocate Software Licenses granted under this EULA to its Affiliates, provided that the Licensee remains responsible to ensure that the use of the Software by an Affiliate is in full compliance with this EULA (including the Applicable License Model Schedule and the applicable Order Document) and the Licensee is liable for any breach of the EULA by an Affiliate.
4 Authorized Copies
4.1 Documentation.
Licensee shall not modify the Documentation. Licensee may make copies of the Documentation provided: (a) the number of copies made does not exceed the number of associated Software Licenses granted to the Licensee; (b) each copy is only used by individuals who are permitted to access the Software under this EULA; and (c) no copies are distributed or used to conduct training for which Licensee, or any other party, receives a fee. Licensee shall not copy 4NG Limited’s system schema reference document, or any other system schema reference document related to the Software, if it is provided to Licensee.
4.2 Software.
Licensee may only make as many copies of the Software as is reasonably required to allow the Licensee to make use of the Software in accordance with the terms, conditions and limitations of the applicable Software License. No other copies of the Software shall be made. Licensee shall: (a) assign an identifier number to each copy of the Software made by Licensee; and (b) maintain a system sufficient to track the location of each such copy. Each copy of the Software (or Documentation) made by Licensee hereunder must contain the same copyright and other proprietary notices that appear on the original copy provided to Licensee.
5 Restrictions
5.1 General Restrictions.
Except as otherwise provided in the applicable License Model, the applicable Order Document or the applicable Documentation, Licensee shall not (and shall not permit any other party to): (a) assign, transfer, sublicense or redistribute the Software to any party in whole or in part; (b) rent, time share, or operate a service bureau with the Software; (c) charge a fee to any party for access to or use of the Software; or (d) install, use, or make available the Software for any online application service provider business, internet service provider business, or other online software rental business. Licensee shall not publish or disclose results of any benchmark or other test run on the Software without 4NG’s prior written consent. Licensee shall not use the Software for the on-line control of aircraft, air traffic, aircraft navigation, or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or for medical or surgical applications, or any other application in which failure could create a situation where personal injury or death could occur. Except as expressly permitted under applicable law, Licensee shall not modify any of the Software, nor adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, nor take any other steps to discover the confidential information or trade secrets in the Software.
5.2 Derivative Works.
Licensee is prohibited from creating (a) any modification, change, translation, addition, enhancement, extension, upgrade, update or improvement of the Software, (b) any work resulting from the porting of the Software to a different operating environment or platform, (c) any new software program based on (i) the Software or any identifiable portion of the Software or (ii) the Software or any identifiable portion of the Software as combined with any other new or pre-existing works, or (d) any other work constituting a derivative of the Software under applicable copyright laws. Notwithstanding the above, in the event that a portion of the Software is provided to the Licensee by 4NG in Source Code Format, the Licensee may modify such portion of the Software for the sole purpose of implementing and using the Software in accordance with the terms of this EULA, and 4NG Limited shall own all modified portions.
5.3 Interfacing and Interactive Software.
The Licensee is prohibited from causing any software products not owned or licensed by 4NG to interface or interact with Software licensed hereunder, except where such interfacing or interaction is accomplished through the use of application program interfaces provided by 4NG.
6 Ordering Software Licenses
6.1 Direct Orders.
If the Licensee is placing an order for Software Licenses directly with 4NG, the Software Licenses must be identified on an Order Document acceptable to 4NG. For the purposes of orders for Software Licenses placed directly with 4NG, the term “Order Document” means either: a) a written order schedule signed by both parties which references this EULA, b) a purchase order, or other similar documentation, which references this EULA and which is issued by the Licensee and accepted by 4NG, or c) any other document which references this EULA and is acceptable to 4NG. In the event that such an Order Document references a quotation prepared by 4NG, such quotation shall be deemed to be part of the Order Document. All Order Documents are governed by and incorporated by reference into this EULA. All Order Documents must describe the Software being licensed, the applicable License Model, the quantity of Software Licenses being ordered, the applicable License Fees, and the applicable first-year support and maintenance fees. Except as otherwise provided for in this EULA, any terms and conditions on the front or back of any Order Document which conflict with or are inconsistent with the terms of this EULA shall have no legal effect.
6.2 Orders through an 4NG Distributor or Reseller.
This EULA must be referenced in any partnership and/or distributor and/or reseller agreement with an authorized 4NG value added distributor (“Distributor”) or an authorized 4NG reseller (“Reseller”), and it is agreed that this EULA applies to all sales of licences to Licensees, irrespective of whether it is explicitly referenced in any end user Order Document or not. For the purposes of orders for Software Licenses placed through a Distributor or Reseller, the term “Order Document” means either: a) a written order schedule signed by the Reseller and the Licensee, b) a purchase order, or other similar documentation, which references this EULA and which is issued by the Licensee and accepted by the Distributor or Reseller. All Order Documents are governed by and incorporated by reference into this EULA. All Order Documents must describe the Software being licensed, the applicable License Model, the quantity of Software Licenses being ordered, the applicable License Fees, and the applicable first-year support and maintenance fees. Except as otherwise provided for in this EULA, any terms and conditions on the front or back of any Order Document which conflict with or are inconsistent with the terms of this EULA shall have no legal effect.
6.3 Risk of Loss and Shipping Terms.
Title to the physical media containing the Software and all risk of loss for the media and Software shall pass to Licensee when delivered by 4NG to the shipping dock of the 4NG shipping facility (“Delivery Point“), at which time the Software is deemed shipped to the Licensee. If the physical media is lost or damaged prior to the Licensee obtaining physical possession, 4NG shall immediately provide a replacement copy of the physical media free of charge. If 4NG is providing the Software by way of electronic download, the Software Licenses are deemed shipped when 4NG has made the Software available to the Licensee for electronic download.
6.4 Timely Payment to 4NG.
The Software Licenses are conditional upon Licensee making timely and complete payment to 4NG (or Distributor or Reseller) of all License Fees and Applicable Taxes. If 4NG (or Distributor or Reseller) is obligated to pay any Applicable Taxes on behalf of Licensee, Licensee shall reimburse 4NG (or Distributor or Reseller) in full promptly following receipt of 4NG’s (or Distributor’s or Reseller’s) invoice. All Applicable Taxes pertaining to Software Licenses are in addition to the License Fees due to 4NG (or Distributor or Reseller) under this EULA. All License Fees and Applicable Taxes due to 4NG (or Distributor or Reseller) under this EULA are payable to 4NG (or Distributor or Reseller) in British Pounds, unless the parties mutually agree otherwise in the applicable Order Document.
6.5 Invoicing and Payment.
4NG (or Distributor or Reseller) may invoice Licensee for License Fees and Applicable Taxes upon shipment of Software Licenses. All License Fees and Applicable Taxes due to 4NG (or Distributor or Reseller) by Licensee shall become due and payable upon Licensee’s receipt of an invoice from 4NG (or Distributor or Reseller). All Applicable Taxes shall be borne by Licensee. If any such tax or duty has to be withheld or deducted from any payment under this Agreement, Licensee shall increase payment under this Agreement by such amount as shall ensure that after such withholding or deduction 4NG shall have received an amount equal to the payment otherwise required. All License Fees and Applicable Taxes due to 4NG (or Distributor or Reseller) under this EULA which are not paid in full within 30 days following its due date shall bear interest at a rate of 1.5% per month (18% per annum) or the maximum amount allowed by law, if less, on the unpaid portion until fully paid.
6.6 Over Usage.
4NG may, at any time, estimate and invoice Licensee for any and all License Fees and Applicable Taxes payable by Licensee to 4NG as a result of any access or use of the Software by, or through, Licensee in excess of the number or type of 4NG Software Licenses granted by 4NG. Licensee shall pay the invoice in accordance with this EULA.
7 4NG Support and Maintenance.
7.1 4NG Support and Maintenance Program.
Unless otherwise agreed by the parties in writing, all Support Software and related Documentation provided to Licensee pursuant to an 4NG maintenance or support program is governed by this EULA. The provision of support and maintenance services by 4NG to the Licensee shall be independently and separately governed by the terms of the then-current version of the 4NG standard Software Maintenance Program Handbook (a copy of which is available upon request).
8 Audits and Noncompliance.
8.1 Audit.
During the Term and for 12 months thereafter: (a) Licensee shall maintain electronic and/or other records sufficient for 4NG to confirm that Licensee has complied with this EULA; (b) Licensee shall make available to 4NG, upon 4NG’s request, copies of Licensee’s Software login accounts (with all personal data and other information that could identify a specific individual removed) and records of the location of the Software; (c) 4NG may audit Licensee’s records and computer systems to ensure Licensee has complied with this EULA, and (d) Licensee shall promptly and accurately complete and return any self-audit questionnaire supplied by 4NG along with a certification by an officer of Licensee confirming that Licensee’s responses to the questionnaire accurately and fully reflect Licensee’s usage of the Software. Licensee will promptly reply to audit confirmation requests from 4NG’s internal or external auditors.
8.2 Conduct.
Each audit shall be conducted during regular business hours at Licensee’s facilities and shall not interfere unreasonably with Licensee’s business. 4NG shall provide Licensee with seven (7) days prior notice of each audit. Licensee shall co-operate with 4NG’s audit team, provide access to Licensee records, and allow 4NG to make and remove copies of Licensee records for the above purposes.
8.3 Noncompliance.
If at any time Licensee is out of compliance with the Software Licenses granted hereunder, Licensee will be deemed to have acquired additional Software Licenses at 4NG’s then-current list price License Fees to the extent necessary to bring Licensee into compliance, and Licensee must immediately pay: a) the applicable License Fees, b) the Applicable Taxes, and c) the maintenance and support fees related to the period during which Licensee was using the Software in an unlicensed fashion. If any audit reveals that Licensee has failed to comply with this EULA, Licensee shall also make payment to 4NG of all audit and other costs incurred by 4NG in performing the audit.
9 Limited Warranties
9.1 Limited Media Warranty.
4NG warrants to Licensee that the media on which the Software is delivered to Licensee will be free from defects in materials and workmanship under normal use for sixty (60) days from the date of first delivery to Licensee. 4NG’s entire liability to Licensee, and Licensee’s sole remedy against 4NG, for breach of this warranty is limited to 4NG replacing the defective media.
9.2 Limited Software Warranty.
4NG warrants to Licensee that the Software delivered to Licensee under this EULA: (a) will be free of all known viruses at the time of first delivery to Licensee; and (b) will perform substantially in accordance with its accompanying Documentation for sixty (60) days from the date of first delivery of the Software to Licensee. 4NG’s entire liability, and Licensee’s sole remedy against 4NG, for each breach by 4NG of the warranty contained in: (i) Section 9.2 (a) above shall be limited to requiring 4NG to deliver a replacement copy of the relevant Software to Licensee free of known viruses; and (ii) Section 9.2 (b) above shall be limited to requiring 4NG to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable period of time, failing which 4NG shall refund all License Fees paid to 4NG by Licensee hereunder which are attributable to the portion of the Software giving rise to the breach.
9.3 Warranty Exclusions.
The warranty in Section 9.2 shall not apply to any breach caused by: (a) any change to the Software, except where such changes were made by 4NG in relation to the provision maintenance and support services; (b) Licensee’s failure to provide a suitable installation or operating environment for the Software; (c) use of the Software on a software or hardware platform not approved by 4NG in writing; (d) software, hardware, firmware, data, or technology not licensed or approved by 4NG in writing; (e) any telecommunications medium used by Licensee; (f) Licensee’s own computer system; or (g) failure of Licensee and/or user to comply with the Documentation. 4NG does not warrant that the Software is error-free or will operate without interruption.
9.4 WARRANTY DISCLAIMER.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTIONS 9.1 AND 9.2 ABOVE, 4NG AND 4NG’S LICENSORS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF EVERY KIND PERTAINING IN ANY WAY TO THE MEDIA OR SOFTWARE LICENSED BY 4NG UNDER THIS EULA, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM, OR OTHERWISE. NEITHER 4NG NOR 4NG’S LICENSORS, MAKE ANY REPRESENTATION, NOR PROVIDE ANY WARRANTY OR CONDITION, REGARDING THE ADEQUACY OF THE MEDIA OR SOFTWARE FOR ANY PARTICULAR PURPOSE, OR THE ADEQUACY OF THE MEDIA OR SOFTWARE TO PRODUCE ANY PARTICULAR RESULT.
9.5 Inability to Exclude Warranties.
Some jurisdictions do not allow the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential, or special damages. If any jurisdiction having applicability to this EULA does not permit any such exclusion or limitation: (a) each warranty which cannot be excluded shall be limited in time to sixty (60) days from the date of first delivery of the applicable Software; and (b) 4NG’s total liability to Licensee for breach of any or all such warranties shall be limited to the amount stated in section 11.2 of this EULA.
10 4NG Infringement Indemnity
10.1 Defence and Indemnity Against Claims.
4NG shall defend Licensee from any claims, suits, actions or proceedings brought against Licensee in a court of competent jurisdiction by a third party which allege an infringement of such third party’s patent, copyright, or trade secret rights of which 4NG is aware existing under the laws of the Covered Countries (individually and collectively referred to as a “Claim”), to the extent that such Claim arises solely as a result of Licensee’s use of the Software within one or more of the Covered Countries in accordance with the provisions of this EULA and the applicable Documentation, and provided: (a) the alleged or actual infringement was not caused by the use of a superseded version of the Software if the infringement would have been avoided by the use of a then current release of the Software; and (b) the alleged or actual infringement was not caused by the modification of the Software by any party other than 4NG; and (c) the alleged or actual infringement was not caused by the combination or use of the Software with software, hardware, firmware, data, or technology not licensed to Licensee by 4NG or approved by 4NG in writing; and (d) Licensee notifies 4NG in writing within ten (10) days of Licensee first becoming aware of each such Claim; and (e) Licensee does not make any admission against 4NG’s interests; and (f) Licensee does not agree to any settlement of any Claim without the prior written consent of 4NG; and (g) Licensee, at the request of 4NG, provides all reasonable assistance to 4NG in connection with the defence, litigation, and/or settlement by 4NG of the Claim; and (h) 4NG has sole control over the selection and retainer of legal counsel, and over the litigation or the settlement of each Claim. 4NG shall also indemnify Licensee from any judgment finally awarded, for which all avenues of appeal have been exhausted, or any final settlement in connection with any such Claims, provided all of the conditions set out above related to the defence of such claims are satisfied.
10.2 Licensee’s Continued Use.
If the Software or its intended use become, or in 4NG’s opinion is likely to become, the subject of a Claim covered by the defence and indemnity provisions in section 10.1 above, 4NG shall, at its option, either obtain for Licensee a nonexclusive license to continue using the infringing portion of the Software or replace or modify the infringing portion of the Software without reasonable degradation in functionality in order to make it non-infringing. If neither of these solutions is reasonably available as determined by 4NG in 4NG’s absolute discretion, 4NG shall refund the unamortized portion of the License Fees received by 4NG from Licensee under this EULA attributable to the infringing portion of the Software, based on a three (3) year straight line amortization commencing on the date of first delivery of the Software to the Licensee. 4NG’s entire liability, and Licensee’s sole and exclusive remedy with respect to any Claims shall be limited to the remedies set out in sections 10.1 and 10.2 of this EULA.
11 Limitation of Overall 4NG Liability
11.1 DISCLAIMER OF DAMAGES / LOSSES.
SUBJECT TO SECTION 11.3 BUT NOTWITHSTANDING ANY OTHER PROVISION IN THIS EULA, ANY AND ALL BREACHES BY 4NG OF THIS EULA (INCLUDING FUNDAMENTAL BREACH), THE TERMINATION BY 4NG OF THIS EULA, OR ANY OBLIGATION THAT 4NG MAY HAVE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, AT LAW, OR OTHERWISE; IN NO EVENT SHALL 4NG BE LIABLE OR OBLIGATED TO LICENSEE, TO ANY USER OF THE SOFTWARE, OR TO ANY OTHER PARTIES FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST DATA, OR REPROCUREMENT AMOUNT; EVEN IF 4NG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES ARISING AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN.
11.2 LIMITATION OF LIABILITY.
SUBJECT TO SECTION 11.3 BUT NOTWITHSTANDING ANY OTHER PROVISION OF THIS EULA, 4NG’S TOTAL, CUMULATIVE, AND AGGREGATE LIABILITY AND OBLIGATION TO LICENSEE: (A) ARISING UNDER THE PROVISIONS OF THIS EULA; (B) FOR ANY AND ALL BREACHES BY 4NG OF THIS EULA (INCLUDING FUNDAMENTAL BREACH) OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN; (C) FOR ANY TERMINATION BY 4NG OF THIS EULA; OR (D) FOR ANY OTHER ACT, OMISSION, OR EVENT RELATED IN ANY WAY TO THIS EULA; SHALL NOT EXCEED THE TOTAL AMOUNT OF LICENSE FEES RECEIVED BY 4NG (OR DISTRIBUTOR OR RESELLER) FROM LICENSEE UNDER THIS EULA, WHETHER 4NG’S LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, AT LAW, OR UPON ANY OTHER THEORY OF LIABILITY. LICENSEE AGREES THAT 4NG WOULD NOT HAVE ENTERED INTO THIS EULA WITHOUT THIS SECTION 11 BEING INCLUDED HEREIN.
11.3 EXCLUSIONS FROM LIMITATIONS.
NOTHING IN THIS EULA SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (II) FRAUD OR DECEIT; OR (III) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
12 Term and Termination
12.1 Term.
The term of this EULA shall begin on the Effective Date and shall continue in full force until terminated pursuant to this Section 12 (“Term”).
12.2 Termination for Default.
Either party may terminate this EULA for default if the other party: (a) becomes insolvent; (b) files any proceeding in bankruptcy or acquires the status of a bankrupt; (c) has a receiver or receiver manager appointed with respect to it or any of its assets; (d) seeks the benefit of any statute providing protection from creditors or takes or suffers any similar or analogous procedure, action or event in consequence of debt in any jurisdiction. Either party may also terminate this EULA for default if the other party breaches any provision of this EULA provided: (i) the non-breaching party provides the breaching party with written notice of breach and a ten (10) day period to cure the breach (“Cure Period“); and (ii) the breaching party fails to cure each breach by the end of the Cure Period. Any termination of this EULA shall be without prejudice to each right or remedy which the non-breaching party may possess against the breaching party under this EULA, at law, in equity, or otherwise.
12.3 Effect of Termination — Generally.
Except in the event of a termination for default under section 12.2 based on breach of this EULA by 4NG, upon any termination or expiry of this EULA: (a) all licenses granted by 4NG herein shall immediately terminate; (b) Licensee shall immediately cease all use of the Software; c) sections 2, 4, 5, 6.4, 6.5, 6.6, 7, 8, 11, 12 and 13 of this EULA shall survive and shall continue in full force; and d) Licensee must either deliver to 4NG or destroy all originals and copies of Software, Documentation and 4NG Confidential Information in Client’s possession, custody or control. Within fifteen (15) days after such termination, one of Licensee’s authorized officers must certify in writing to 4NG that all such originals and copies have been so delivered or destroyed.
12.4 Effect of Termination – Based on breach by 4NG.
In the event of a termination for default under section 12.2 based on breach of this EULA by 4NG: a) licenses granted by 4NG herein shall not terminate, and b) sections 1, 2, 3, 4, 5, 6.6, 8, 9.3, 9.4, 9.5, 11 and 13 of this EULA shall survive and shall continue in full force.
13 Miscellaneous Provisions
13.1 Confidentiality.
Licensee shall: (a) receive and maintain the Software in confidence; and (b) use the same degree of care with respect to the Software as Licensee employs to protect Licensee’s own confidential or trade secret information from unauthorized use, duplication or disclosure, but not less than a high degree of care.
13.2 Automated Verification.
Licensee acknowledges that the Software may contain a license key to prevent unauthorized installation or to enforce limits of a Software License, and may contain devices to monitor compliance with Licensee’s license obligations under this EULA.
13.3 Developer Tools.
If the Licensee creates additional software code or software products using software developer tools licensed by 4NG to Licensee (collectively “Licensee Software”), 4NG shall not be responsible or liable in any way for the development or use of such Licensee Software and Licensee shall defend and indemnify 4NG against any claims, damages, costs, losses or expenses related to the development or use of the Licensee Software.
13.4 Independent Contractors.
4NG and Licensee are independent contractors. Neither 4NG nor Licensee shall have any authority to bind the other in any manner.
13.5 Waiver, Amendment, Assignment.
No waiver of any provision of this EULA is binding on either party unless set out in a mutually signed written waiver. We reserve the right to change this Agreement at any time, and the changes will be effective when posted on our website for the Software or when we notify you by other means. Your continued use of the Software indicates your agreement to the changes. This EULA may be assigned by 4NG to an Affiliate of 4NG or to a successor-in-interest/title of 4NG without consent. This EULA shall not be assigned by Licensee, in whole or in part, without 4NG’s prior written consent.
13.6 Vienna Convention.
All provisions of the United Nations Convention on Contracts For The International Sale of Goods are hereby rejected by the parties and excluded from this EULA in their entirety.
13.7 Governing Law.
This EULA and any dispute or claim arising out of or in connection with it or its subject matter is governed by and shall be construed in accordance with the laws of England and Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any disputes and claims which may arise out of, or in connection with, this Agreement, except for injunctive relief required by 4NG to protect its intellectual property (which may be sought in any jurisdiction). If Licensee or 4NG commence any litigation or proceeding against the other related to this EULA, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and court costs.
13.8 Force Majeure.
Except for payment obligations (including License Fees, maintenance and support fees, and Applicable Taxes) or any obligations relating to the protection of or restrictions applicable to the other party’s confidential information or intellectual property, neither party shall be liable to the other or be in breach of this EULA due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labour disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labour difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of that party.
13.9 Severability.
Should any provision of this EULA be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this EULA but all remaining provisions shall continue in full force.
13.10 Press Release.
Licensee agrees 4NG may use and disclose Licensee’s name and the nature of this EULA in an 4NG public press release and marketing materials.
13.11 Attribution Notices.
Within the Software, including the graphical user interfaces of the Software, 4NG has inserted various ownership, attribution or branding notices (all such notices and instances collectively referred to as “Attribution Notices“). Without prior written consent of 4NG, the Licensee shall not: a) remove, modify, obscure, re-size or re-locate Attribution Notices, or b) cause any Attribution Notices to become not visible to any users of the Software.
13.12 Third Party Software.
4NG may resell licenses to software products owned by third parties (“Third Party Software”). If 4NG resells licenses to Third Party Software to the Licensee, the use of Third Party Software is governed by a license agreement between the owner of such software and the Licensee. 4NG does not provide any warranties related to the use or functionality of Third Party Software, and the parties agree that 4NG has no liability or obligation to the Licensee related to the use or licensing of Third Party Software. The fact that 4NG and the Licensee include or identify the resale of licenses for Third Party Software on an Order Document that also includes or identifies 4NG Software Licenses, does not imply that 4NG is licensing Third Party Software.
13.13 Entire License Agreement.
This EULA, together with each written and signed schedule, each Applicable License Model Schedule, each applicable Order Document, and each written and signed addendum, sets forth the entire agreement between 4NG and Licensee with respect to the subject matter hereof, and supersedes all prior related oral and written agreements and understandings between the parties. The application of Licensee’s purchasing or other terms and conditions is expressly rejected. Subject to section 11.3, neither party is bound by or is liable for any alleged representation, promise, or inducement not expressly stated in this EULA.
13.14 Third Party Rights.
No term of this EULA is intended to confer a benefit on, or to be enforceable by, any person or entity who is not a party to this EULA.
13.15 Legal Review and Interpretation.
It is acknowledged that this EULA was initially prepared by 4NG. Both parties, however, have had an opportunity for legal review of all terms. The parties therefore agree that, in interpreting any issues which may arise, any rules of construction related to who prepared the EULA shall be inapplicable, each party having contributed or having had the opportunity to clarify any issue. In addition, the headings used in this EULA are for convenience only and do not in any way limit or otherwise affect the meaning of any terms of this EULA.
13.16 Notices.
Any notice under this EULA that must be given by a party in writing is deemed effective when sent via Federal Express or other commercial courier to the other party’s address specified at the beginning of this EULA or on the most recent Order Document.
13.17 Hardware.
If 4NG sells computer/IT hardware along with Software Licenses, the legal terms and conditions which govern the purchase, sale and use of such hardware are the subject of a separate agreement between the parties (even if such hardware is identified in an Order Document governed by this EULA). Unless the separate agreement provides differently, 4NG disclaims all warranties and liability with respect to the purchase, sale and use of the hardware to the maximum extent permitted by applicable law.