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EULA - End User License Agreement

End User License Agreement

PLEASE READ THIS END USER LICENSE AGREEMENT "EULA" CAREFULLY BEFORE INSTALLING THE SOFTWARE. BY INSTALLING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT PERMITTED TO INSTALL THE SOFTWARE. THIS IS A LEGAL AGREEMENT BETWEEN "YOU" (EITHER AN INDIVIDUAL OR A COMPANY) AND KYOSOFT "KYOSOFT".

INDEX OF CLAUSES

1. DEFINITIONS
2. GRANT OF LICENCE
3. DELIVERY/INSTALLATION
4. ACCEPTANCE
5. PERMITTED USE
6. EXTENT OF PERMITTED REPRODUCTION
7. DECOMPILATION
8. PAYMENT TERMS
9. PROPRIETARY RIGHTS
10. CONFIDENTIALITY
11. TRAINING
12. DEFECTS WARRANTY
13. LIMITATION OF LIABILITY
14. COPYRIGHT INDEMNITY
15. TERMINATION
16. POST TERMINATION
17. FORCE MAJEURE
18. ASSIGNMENT
19. NOTICES
20. SEVERABILITY
21. WAIVER
22. ENTIRE AGREEMENT
23. GOVERNING LAW
SCHEDULE

THIS AGREEMENT is made on the day of installation onto the licensee's computer,
BETWEEN:

(1) KYOSOFT whose principal place of business is at (www.kyosoft.com) ('the Licensor') and
(2) The Purchasor ('the Licensee')
NOW IT IS AGREED as follows:

1.Definitions
In this agreement unless inconsistent with the context or otherwise specified the following definitions will apply:

1.1. 'Acceptance Date' means the date on which the Software is accepted or deemed to be accepted by the Licensee pursuant to clause 4.

1.2. 'Agreement' means these terms and the Schedule to them.

1.3. 'Charges' means the charges (if any) described in the Schedule for the provision of installation training and other ancillary services and items or, where they are not described in the Schedule, then any charges additional to the Licence Fee that may be invoiced by the Licensor to the Licensee in connection with this Agreement (whether by virtue of a specific provision or otherwise) which will be calculated on a time and materials basis in accordance with the Licensor's then current standard rates.

1.4. 'Documentation' means the operating manuals, user instructions and other related materials supplied to the Licensee by the Licensor (whether physically or by electronic means) for aiding the use of the Software including any part or copy of it.

1.5. 'Equipment' means the computer specified in the Schedule2.

1.6. 'Licence Fee' means the fee specified in the Schedule.

1.7. 'Licence Period' means the period specified in the Schedule.

1.8. 'Licensed Materials' means the Software, the Documentation and the Media.

1.9. 'Location' means the location of the Equipment at the address given in the Schedule.

1.10. 'Media' means the carrier media specified in the Schedule on which the Software and the Documentation are recorded or printed and delivered to the Licensee.

1.11. 'Software' means the computer program in object code form only as described briefly in the Schedule including any copies but excluding source code material and all preparatory design material.

1.12. 'Specification' means the specification describing the facilities and functions of the Software a copy of which is attached to this Agreement

1.13. 'use the Software' means to load the Software into and store, run and display the Software on the Equipment in accordance with the terms of this Agreement.
2. Grant of licence
Subject to the terms of this Agreement and in consideration of the payment to the Licensor by the Licensee of the Licence Fee, the Licensor grants to the Licensee a non-exclusive and non-transferable licence ('the Licence') to use the Licensed Materials during the Licence Period. If use of the Licensed Materials outside the United Kingdom is authorised by the Licensor, the Licensee will be responsible at its own expense for complying with all applicable export and import laws and regulations.
3. Delivery and installation

3.1. The Licensor will deliver one copy of the Software and the Documentation on the Media to the Licensee via e-mail.

3.2. The Licensee is responsible for ensuring that the Equipment is installed and fully operational at the Location prior to the Scheduled date for delivery of the Software.

3.3. The Licensee is responsible for installation of the Software on the Equipment

3.4. The Licensor will use all reasonable endeavours to achieve delivery via e-mail by any specified or requested date but each such date is to be treated as an estimate only and time shall not be of the essence. Where payment of any part of the Licence Fee or any other Charges is to be made before delivery of the Software, the Licensor may withhold delivery until such payments have been received.

3.5. Risk in the Media will pass to the Licensee on delivery to the Licensee.
4. Acceptance

4.1. Where acceptance tests are specified in the Schedule, acceptance of the Software will take place upon the date of successful completion of the tests by the Software correctly processing test data and achieving the expected results in accordance with test criteria, as such test data, expected results and test criteria are prepared by the Licensee and approved by the Licensor (such approval not to be unreasonably withheld.
5. Permitted use

5.1. The Licensee may use the Software only on the Equipment at the Location. The use of the Software on different equipment or at a different location requires the prior written consent of the Licensor (which consent will not be unreasonably withheld). Upon such consent being given the different equipment or location will become the Equipment or Location for the purposes of the Licence.

5.2. If any of the Equipment becomes temporarily inoperable, then the Licence is deemed to apply to the use of the Software on other equipment of the same type which is under the Licensee's direct control, without any additional payment to the Licensor but at the Licensee's risk and expense, until the Equipment becomes operable. The Licensee shall promptly notify the Licensor of any such temporary use and of the commencement and cessation of it.

5.3. The Licensee may use the Licensed Materials for processing its own data for its own internal business or personal purposes only. The Licensee shall not use or attempt to use the Licensed Materials or any of the output of the Software or permit any third party to do so:

5.3.1. to provide a data processing service to any third party by way of trade or otherwise; or

5.3.2. as part of a network; or

5.3.3. contrary to any other restrictions stated in this Agreement.

5.5. The Licensee shall not translate or adapt the Licensed Materials for any purpose nor arrange or create derivative works based on the Software without the Licensor's express written consent in each case.

5.6. The Licensee shall not transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Licensed Materials to any other person.

5.7. The Licensee shall not make for any purpose, including (without limitation) for error correction, any alterations, modifications, additions or enhancements to the Software except as specifically described in the Documentation nor permit the whole or any part of the Software to be combined with or become incorporated in any other program except to the extent permitted by clause 7 without the Licensor's prior written consent.

5.8. Subject to clause 5.2, a separate licence is required for use of copies of the Software on equipment other than the Equipment, including use on any disaster recovery equipment.
6. Extent of permitted reproduction

6.1. The Licensee is permitted to make a back-up copy of the Software in so far as the making of that copy is necessary for the use of the Software permitted by this Licence. Such copy will be the property of the Licensor.

6.2. The Licensee shall not make or permit others to make any copies of the Documentation without the Licensor's prior written consent.

6.3. The Licensee shall effect and maintain adequate security measures to safeguard the Licensed Materials from unauthorised access use or copying.

6.4. The Licensee shall keep accurate and up to date written records of the Licensee's use, copying and disclosure of the Software as the Licensor may from time to time reasonably require or, in default of any specific requirement by the Licensor, then in accordance with good data processing practice and shall allow the Licensor, on request, to inspect and take copies of such records from time to time.
7. Decompilation

7.1. The Licensee shall not nor permit others to decompile, reverse-engineer or disassemble the Software or any part except that the Licensee may decompile the Software to the extent permitted by and subject to the provisions of the EC Software Directive as enacted by the Copyright, Designs and Patents Act 1988 as amended where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with the Software or with another program ('the Information') and the Information is not readily available from the Licensor or elsewhere.

7.2. With respect to the Information, whether provided by the Licensor or obtained by decompilation, the Licensee shall not nor permit others to:

7.2.1. use the Information for any purpose other than to achieve the interoperability of an independently created program with the Software or other programs; or

7.2.2. supply the Information to any other person except when necessary for the interoperability of the independently created program with the Software or other programs; or

7.2.3. use the Information for the development, production or marketing of a computer program substantially similar in its expression to the Software, or for any other copyright infringing act; or

7.2.4. use the Information in a manner which unreasonably prejudices the Licensor's legitimate interests or conflicts with a normal exploitation of the Software.
8. Payment terms

8.1. The Licensee will pay to the Licensor the Licence Fee and all other Charges which fall due under this Agreement of the amounts and at the times specified in the Schedule or otherwise invoiced by the Licensor from time to time. Where applicable, VAT and any other taxes duties or levies will be paid additionally by the Licensee at the then prevailing rate.

8.2. All sums due under this Agreement will be paid by the Licensee prior to delivery of the software.

8.3. If any sum payable to the Licensor under this Agreement is in arrears for more than 30 days after the due date, the Licensor reserves the right, without prejudice to any other right or remedy, to charge interest on such overdue sum on a day to day basis from the original due date until paid in full at a rate of 3% above Barclays Bank plc base lending rate in force from time to time.

8.4. The Licensee will notify the Licensor in writing within 5 days of receipt of an invoice if the Licensee considers such invoice incorrect or invalid for any reason and the reasons for withholding payment failing which the Licensee will raise no objection to any such invoice and will make full payment in accordance with it.
9. Proprietary rights

9.1. The Licensee will not acquire any title, copyright or other proprietary rights in the Licensed Materials or any copies of them.

9.2. The Licensee agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the Software or which are visible during its operation or which is on the Media or on any Documentation. The Licensee shall incorporate such proprietary markings in any back-up copies.

9.3. The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised access to, use or copying of any part of the Licensed Materials by any person.

9.4. The Licensee shall permit the Licensor to check the use of the Licensed Materials by the Licensee at all reasonable times. The Licensor may upon reasonable notice send its representatives to any of the Licensee's premises to verify compliance with this Agreement and the Licensee irrevocably consents to the Licensor's representative entering the Location and any other of its premises for this purpose.
10. Confidentiality

10.1. The Licensee acknowledges that the Licensed Materials contain confidential information of the Licensor and or of third parties. The Licensee undertakes to treat as confidential and keep secret all information contained in or otherwise received from the Licensor in connection with the Licensed Materials (collectively referred to as 'the Confidential Information') and shall not use the same for purposes other than in relation to use of the Software in accordance with the Licence.

10.2. The Licensee shall not without the Licensee's prior written consent communicate or disclose any part of the Confidential Information to any person except:

10.2.1. only to those employees on a need to know basis who are directly involved in the use of the Software;

10.2.2. the Licensee's auditors professional advisers and any other persons or bodies having a legal right or duty to have access to or knowledge of the Confidential Information in connection with the business of the Licensee.

10.3. The Licensee undertakes to ensure prior to disclosure of any Confidential Information that all persons and bodies mentioned in clause 10.2 are aware that the Confidential Information is confidential and that they owe a duty of confidence to the Licensor. The Licensee will indemnify the Licensor against any loss or damage which the Licensor sustains or incurs as a result of the Licensee failing to comply with such undertaking.

10.4. Any ideas and principles determined during the course of observing studying or testing the functions of the Software constitute Confidential Information subject to this clause 10.

10.5. The provisions of this clause 10 will not apply to any Confidential Information which:

10.5.1. is or becomes public knowledge other than as a result of the Licensee's conduct; or

10.5.2. is independently developed without access to or use of the Licensed Materials.

10.6. This clause 10 will continue in force notwithstanding the termination of this Agreement for any reason.
11. Training
The Licensor does not provide training under this licence..
12. Defects warranty

12.1. The Licensor warrants that:

12.1.1. the Software when properly used on the Equipment will provide the facilities and functions and perform substantially as described in the Documentation or Specification; and

12.1.2. the Media on which the Software is furnished will be free from defects in materials and workmanship under normal use.
The Licensor does not warrant that the operation of the Software will be uninterrupted or error free.

12.2. The Licensor's obligation and the Licensee's exclusive remedy under the warranty given in clause 12.1 is limited either:

12.2.1. to within a reasonable period of time or at the Licensor's option replacement of the Software or defective Media in whole or in part;or

12.2.2. to a refund of the Licence Fee paid if in the Licensor's reasonable opinion it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost upon which the Licence shall terminate.

12.3. The Licensor will have no liability or obligation under the warranty given in this clause 12 unless it has received written notice from the Licensee of any non-conformance with the warranty within 90 days from the Acceptance Date.

12.4. The Licensee acknowledges that the Licensed Materials have not been prepared to meet the Licensee's individual requirements and that it is the Licensee's responsibility to ensure that the facilities and functions of the Software meet the Licensee's requirements.

12.5. The Licensor will not be liable for any failure of the Software to provide any facility or function not described in the Documentation or Specification or for any failure of the Software attributable to any modification (whether by alteration, deletion, addition or otherwise) to the Software or the Equipment by either the Licensor in default of its obligations under this Agreement or by persons other than the Licensor or combination of the Software with other software or equipment without the Licensor's express prior written consent.

12.6. If a problem is found upon investigation not to be the Licensor's responsibility under the provisions of this clause 12, the Licensor may charge the Licensee immediately for all reasonable costs and expenses incurred by the Licensor in the course of or in consequence of such investigation.
13. Limitation of liability

13.1. The Licensee acknowledges that the Licensor's obligations and liabilities in respect of the Licensed Materials are exhaustively defined in this Agreement. The Licensee agrees that the express obligations and warranties made by the Licensor in this Agreement are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this Agreement including (without limitation) as to the condition, quality, performance, merchantability or fitness for purpose of the Licensed Materials or any part of them.

13.2. The Licensee is responsible for the consequences of any use of the Licensed Materials. The Licensor will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused, whether arising under contract, tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if the Licensor has been advised of their possibility.

13.3. The Licensor accepts liability to the extent that it results from the negligence of the Licensor and its employees for

13.3.1. death or personal injury without limit; and

13.3.2. physical damage to or loss of the Licensee's tangible property up to the amount of £500 in respect of each incident or series of connected incidents.

13.4. In all other cases not falling within clause 13.3 the Licensor's total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution will not exceed in aggregate the greater of the sum of £500 or the Licence Fee paid by the Licensee.

13.5. The Licensee agrees that except as expressly provided in clauses 12 and 14 and this clause 13 the Licensor will not be under any liability of any kind whatever and however caused arising directly or indirectly in connection with this Agreement.The Licensee will indemnify the Licensor in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from the Licensee's possession operation or use of the Licensed Materials except and in so far as the Licensor is liable as expressly provided in this Agreement.

13.6. The Licensee acknowledges and agrees that the allocation of risk contained in this clause 13 is reflected in the Licence Fee and is also a recognition of the fact that, inter alia, the Software cannot be tested in every possible combination and it is not within the Licensor's control how and for what purpose the Licensed Materials are used by the Licensee.