ANDREW VOLLER LIGHTING DESIGN LIMITED
LICENCE AND SUPPORT AGREEMENT
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE:
THIS LICENCE AGREEMENT (LICENCE) IS A LEGAL AGREEMENT BETWEEN YOU (LICENSEE OR YOU) AND ANDREW VOLLER LIGHTING DESIGN LIMITED A COMPANY REGISTERED IN ENGLAND AND WALES UNDER REGISTRATION NUMBER 07312325 WHOSE REGISTERED OFFICE IS AT UNIT 10, ACORN FARM BUSINESS CENTRE, CUBLINGTON ROAD, WING, LU7 0LB, UNITED KINGDOM (LICENSOR OR WE) FOR THIS MOVING LIGHT ASSISTANT SOFTWARE PRODUCT (SOFTWARE).
THIS SOFTWARE REQUIRES WORKSTATIONS WITH INTEL PROCESSORS AND APPLE MAC OSX VERSION 10.7 OR LATER OR MICROSOFT WINDOWS 7 OPERATING SYSTEMS (MINIMUM REQUIREMENTS). BY CLICKING ON THE “ACCEPT” BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF YOUR EMPLOYER YOU ACKNOWLEDGE THAT YOUR EMPLOYER AGREES TO BE BOUND BY THIS AGREEMENT AND YOU WARRANT THAT YOU ARE AUTHORISED TO BIND THE COMPANY TO THE TERMS OF THIS LICENCE. IF YOU (OR YOUR EMPLOYER) DO NOT AGREE TO THE TERMS OF THIS LICENCE WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION OR APPLICATION LAUNCH PROCESS NOW. IN THIS CASE THE INSTALLATION OR APPLICATION LAUNCH PROCESS WILL TERMINATE.
WHEREAS IT IS HEREBY AGREED AS FOLLOWS:
1.1 “Demo/Reader Licence” means a licence of the Software as more specifically described in clauses 3.1 and 3.2.
1.2 “Documentation” means the electronic user manual supplied on the media on which the Software is supplied, and the online user manual.
1.3 “Effective Date” means the date of this Agreement.
1.4 “Institutional Licence” means a licence of the Software as more specifically described in clauses 3.5 and 3.6.
1.5 “Licence” means this licence agreement (including any Demo/Reader Licence, Personal Licence, Institutional Licence and Student Licence) and any Schedule.
1.6 “Licence Key” means the encrypted code supplied to the Licensee by the Licensor to access the Software.
1.7 “Licence Fee” means the one-off licence fee payable by the Licensee to the Licensor, as specified in the Schedule.
1.8 “Maintenance Release” means any correction of the current version of the Software issued by the Licensor from time to time.
1.9 “New Version” means upgraded versions of the Software, which may include new features and functionality, as released from time to time at the Licensor’s discretion.
1.10 “Personal Licence” means a licence of the Software as more specifically described at clause 3.3 and 3.4.
1.11 “Schedule” means the schedule attached hereto.
1.12 “Software” means the object code form of the software licenced on the terms of a Demo/Reader Licence, Personal Licence, Institutional Licence or Student Licence and as set out in the Schedule to this Licence, together with any Maintenance Releases provided to Licensee.
1.13 “Student Licence” means a licence of the Software as more specifically described at clauses 3.7 and.3.8.
1.14 “Support” means the provision of support and maintenance by the Licensor in respect of the Software in accordance with clause 5.
1.15 “Users” means, in an Institutional Licence, each individual user whom the Licensee permits to use the Software in accordance with the terms and conditions hereof.
1.16 “Workstation” means a single computer the Software is installed on.
2. LICENCE KEY
Following Licensor’s receipt of the Licence Fee and Licensee’s installation of the Software, the Licensee may activate the Software by obtaining the Licence Key. The Licence Key is available by connecting the Software to the internet or e-mailing firstname.lastname@example.org.
3. GRANT OF RIGHTS
3.1 In the event Licensee has selected a Demo/Reader Licence, in consideration for Licensee’s compliance with the terms and conditions of this Agreement, the Licensor hereby grants the Licensee a non-exclusive, limited, non-assignable, non-sub-licensable right to use the Software and Documentation on the terms hereunder.
3.2 In respect of a Demo/Reader Licence:
3.2.1 the Licensee may install the Software on an unlimited number of Workstations;
3.2.2 the Licensee shall only use the Software for the purpose of reading lighting documentation created using the Software or creating new lighting documentation for the purpose of evaluating the Software. Licensee acknowledges that the Software is not a fully enabled version of the Software and contains limitations and restrictions to the usual functionality of the Software;
3.2.3 the Demo/Reader Licence shall commence on the Effective Date and continue until terminated in accordance with clause 8 (“Demo/Reader Licence Term”);
3.2.4 subject to clause 10.5, the Licensor shall not be liable for any direct, indirect, special, consequential or incidental damages or losses (including but not limited to any data loss or corruption) arising under or in connection with this Demo/Reader Licence.
3.3 In the event the Licensee has selected a Personal Licence and in consideration for the Licence Fee, the Licensor hereby grants Licensee a perpetual, worldwide, non-exclusive, non-transferable, paid-up licence to use the Software and the Documentation on the terms hereunder.
3.4 In respect of a Personal Licence:
3.4.1 the Licensee may install the Software on up to two (2) Workstations but acknowledges that the Software may only be used on a single Workstation at any one time;
3.4.2 the Licensee shall only use the Software for its own personal and own business purposes; and
3.4.3 the Personal Licence shall commence on the Effective Date and continue indefinitely unless terminated in accordance with clause 8 below.
3.5 In the event the Licensee has selected an Institutional Licence and in consideration for the Licence Fee, the Licensor hereby grants Licensee a perpetual, worldwide, non-exclusive, non-transferable, paid up licence to use the Software and the Documentation on the terms hereunder.
3.6 In respect of an Institutional Licence:
3.6.1 the Licensee may install the Software on up to ten (10) Workstations, subject to use of the Software being limited to up to five (5) Workstations at any one time and may permit up to five (5) Users to use the Software;
3.6.2 the Licensee may use the Software for the Licensee’s own internal business purposes only;
3.6.3 use of the Software is by the Licensee only and no subsidiaries or holding company of the Licensee may use the Software; and
3.6.4 the Institutional Licence shall commence on the Effective Date and continue indefinitely until terminated in accordance with clause 8 below.
3.7 In the event the Licensee has selected a Student Licence and in consideration for the Licence Fee, the Licensor hereby grants Licensee a perpetual, worldwide, non-exclusive, limited, non-transferable, paid-up licence to use the Software and the Documentation on the terms hereunder.
3.8 In respect of a Student Licence:
3.8.1 the Licensee may install the Software on up to two (2) Workstations, subject to use of the Software being limited to a single Workstation at any one time;
3.8.2 the Licensee shall only use the Software for its own personal and own business purposes;
3.8.3 the Licensee acknowledges that the Software contains limitations and restrictions on use;
3.8.4 the Licensee warrants, represents and undertakes that, as at the Effective Date, he or she is enrolled in full time education and will continue to be for no less than 12 months following the Effective Date. For the avoidance of doubt, a breach of this clause will be deemed a material breach, terminable in accordance with clause 8.1.1; and
3.8.5 the Student Licence shall commence on the Effective Date and continue for a period of three (3) years, unless terminated earlier in accordance with this Licence.
4.1 Except as expressly permitted in this Licence, the Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or the Licensee’s right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of the Licensor affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Licence.
4.2 The Software contains (and the Licensor may modify the Software to add) technical measures that are intended to (i) restrict; or (ii) notify the Licensor; of any unauthorised use of the Software. In the event that the Licensee’s use of the Software exceeds the number permitted under this Licence, the Licensor shall be entitled to revoke the Licence in respect of the Software and to terminate this Licence.
5.1 In consideration for payment of the Licence Fee, the Licensor shall provide the Support, which shall comprise:
5.1.1 responding to requests for advice on the use of the Software by Licensee by electronic mail or the Moving Light Assistant social media accounts; and
5.1.2 the provision of New Releases and Maintenance Releases where available, in accordance with clause 5.2.
5.2 The Licensor may provide the Licensee with Maintenance Releases from time to time at its sole discretion. The Licensee shall promptly follow all instructions provided by the Licensor in respect of the Maintenance Releases.
5.3 Nothing in the Agreement shall oblige the Licensor to provide New Releases to the Licensee free of charge.
6. PROPRIETARY RIGHTS
6.1 The Licensor has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence conveys a licence to use the Software and shall not be construed to convey title to, or ownership of, the Software to the Licensee. All rights in and to the Software not expressly granted to the Licensee, are reserved by the Licensor.
7. LICENCE FEE
7.1 In consideration for the Personal Licence, Institutional Licence, or Student Licence, granted to the Licensee hereunder, the Licensee shall pay the Licensor (or such other person, company or organisation as the Licensor may direct in writing) a one-time non-refundable Licence Fee. For the avoidance of doubt, no Licence Fee is payable in respect of a Demo/Reader Licence.
7.2 The Licence Fee shall be due and payable on the Effective Date and is exclusive of VAT or other sales tax, which shall be added to the invoice and payable by the Licensee. If any applicable law requires the Licensee to withhold amounts from any payments to Licensor hereunder, (i) the Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Licensor with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by the Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, the Licensor receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount the Licensor would have received and retained in the absence of such required deduction or withholding.
8. TERM AND TERMINATION
8.1 This Licence may be terminated:
8.1.1 forthwith by Licensor or Licensee if the other commits any material breach of any term of any of this Licence and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same. For the avoidance of doubt, a material breach shall include breach of clause 4 of this Licence;
8.1.2 forthwith by Licensor or Licensee if the other shall convene a meeting of its creditors, or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986, or a proposal for any other composition scheme, or arrangement with (or assignment for the benefit of) its creditors, or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other, or if a petition is presented or a meeting is convened for the purpose of considering a resolution, or other steps are taken for the winding up of the other, or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
8.2 The Licensor shall be entitled to (a) immediately terminate this Licence upon written notice; and (b) permanently prohibit the Licensee and/or the IP addresses used by the Licensee from making any use of and/or accessing the Software in the event the Licensee is, or the Licensor has reasons to be believe that the Licensee is (i) using the Software to commit a criminal act, or to cause nuisance or annoyance or inconvenience to or harass others, including without limitation, to engage in hacking activities; and/or (ii) using the Software and/or doing an act or series of acts that shall or may reasonably be deemed to infringe any patents, copyrights, trademarks, design rights or any other intellectual property rights or other rights of any third parties.
8.3 Upon any termination of this Licence, (a) the rights and licences granted to the Licensee herein shall terminate; (b) the Licensee shall cease all use of the Software; © the Licensee shall return to the Licensor all copies of the Software and Documentation in the Licensee’s possession or under its control; and (d) the Licensee shall certify in writing to the Licensor its compliance with the foregoing. Clauses 1, 6, 7 (to the extent of unpaid obligations), 8.3, 9.3, 10 and 11 shall survive any termination of this Licence.
9. REPRESENTATIONS AND WARRANTIES
9.1 The Licensor warrants that the Software will function materially in accordance with the Documentation for a period of ninety (90) days from the Effective Date.
9.2 The above warranty is conditional upon the Licensee complying with the Minimum Requirements and subject to any limitations in the use of the Software imposed by the Demo/Reader Licence and Student Licence.
9.3 The warranties set forth in this clause 9 are exclusive and in lieu of all other warranties, express or implied, including without limitation the implied warranties of satisfactory quality, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.
9.4 Licensee hereby represents that it: (i) is legally capable of entering into binding contracts; (ii) shall comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (iii) use the Software only for lawful purposes and in accordance with the terms of this Licence.
10. LIMITATION OF LIABILITY
10.1 Subject to clause 10.5, the maximum aggregate liability of the Licensor with respect to any claims arising out of or in connection with this Licence whether arising in contract, tort (including negligence) or otherwise shall be limited to the Licence Fee paid by the Licensee to the Licensor. For the avoidance of doubt, the foregoing limitation shall not apply to a Demo/Reader Licence, such licence to be subject to the limitation at clause 3.2.4.
10.2 In no event shall the Licensor be liable for any special, indirect, incidental, or consequential damages, loss of profits or goodwill, business or business benefit, loss of any anticipated savings, or the cost of procurement of substitute products by the Licensee even if advised of the possibility of such damages.
10.3 In no circumstances shall the Licensor be liable for any failure of the Software to perform in accordance with the Documentation, or at all, resulting from a failure by the Licensee to:comply with the Minimum Requirements; or comply with the instructions set out in the Documentation; or implement any Maintenance Release.
10.4 The Licensee acknowledges that whilst the Software may be used in combination with third party software, the Licensor bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the Software to integrate with Licensee’s or third party’s software.
10.5 For the avoidance of doubt, nothing in this Licence Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
11.1 The Licensee shall not assign this Licence, in whole or in part, without the written consent of Licensor.
11.2 The Licensee consents to the use by the Licensor of Licensee’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between the Licensee and Licensor.
11.3 This Licence and its performance shall be governed by and construed in accordance with English law, and the parties hereby submit to the exclusive jurisdiction of the courts of England.
11.4 Licensee agrees that because of the unique nature of the Software and Licensor’s proprietary rights therein, a demonstrated breach of this Licence by the Licensee would irreparably harm the Licensor, and monetary damages would be inadequate compensation. Therefore, the Licensee agrees that the Licensor shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence.
11.5 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by email or facsimile (in all cases to be confirmed by letter posted within 12 hours) to the address of the other set out or referred to in this Licence (or such other address as may have been notified). Any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email or facsimile) upon the expiration of 12 hours after dispatch.
11.6 If any provision of this Licence or the Software thereof is declared void, illegal, or unenforceable, the remainder of this Licence will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
11.7 Any failure by any party to this Licence to enforce at any time any term or condition under this Licence will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Licence.
11.8 Neither the Licensor nor Licensee shall be liable for any breach of this Licence resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, wrecks or delays in transportation, inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”). Each of the Licensor and Licensee agree to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than 13 weeks, then the party not in default shall be entitled to terminate this Licence. Neither the Licensor nor the Licensee shall have any liability to the other in respect of such termination as a result of an Event of Force Majeure.
11.9 This Licence (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by the Licensee shall supersede this Licence. Each of the parties acknowledges that in entering into this Licence on the terms set out herein, it has not relied on, or been induced to enter into this Licence by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this Licence, other than those expressly set out in this Licence.