This Software Licence Agreement (“Agreement”) is a legal agreement between you, either an individual or an entity, (“Licensee”) and the licensor, Excitech Limited (“Excitech”) whose registered office is at Design Technology Centre, 8 Kinetic Crescent, Innova Business Park, Enfield, Middlesex, EN3 7XH, United Kingdom for the accompanying computer software product(s), associated materials and documentation (“Software”). By installing, displaying, copying, accessing or otherwise using the Software, you, the Licensee, agree to be bound by the terms of this Agreement.
Subject to the terms of this Agreement and payment of all applicable fees (“Licence Fee”), Excitech grants to the Licensee a non-exclusive and non-transferable licence to install and use the Software solely for the internal business purposes of the Licensee (“Licence”). Where the Licensee is an entity, its employees, agents and subcontractors shall be covered under this Agreement.
Licensee shall use the Software only in accordance with this Agreement including Autodesk’s minimum terms and conditions set forth in Appendix A.
If the Software has been rented, Excitech will provide Licensee with telephone and email based incident management plus software updates; otherwise a support agreement can be purchased separately.
The term of the License is perpetual unless the Licensee is renting the software for a set period.
INTELLECTUAL PROPERTY RIGHTS
The copyright, patents, trade marks and all other intellectual property rights in the Software and related documentation are owned by and remain the property of Excitech or its suppliers.
Licensee does not obtain any rights in the Software other than those expressly granted in this Agreement.
RESTRICTIONS ON USE
Licensee shall not, nor permit others to:
(a) Use, copy, modify, create derivative works from or distribute the Software, any part of it, or any copy, adaptation, transcription, or merged portion of it, except to the extent that the foregoing acts are permitted by law;
(b) Decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Software or any part of it, except to the extent that the foregoing acts are permitted by law;
(c) Exploit or sell the Software commercially;
(d) Use the Software in any country that is not stated in the billing address submitted by Licensee to Excitech at the time of purchase;
(e) Transfer, loan, lease, assign, charge, rent, or otherwise sublicense the Software or this Agreement;
(f) Use the Software in any manner that infringes the intellectual property or other rights of Excitech or any other party;
(g) Remove or alter any copyright, proprietary or similar notices from the Software (or any copies of it); or
(h) operate the Software or any part of it for the benefit of or on behalf of any third party, including by way of application service provider services, internet service provider services, timesharing arrangements, outsourcing services or bureau services.
WARRANTIES AND REPRESENTATIONS
Excitech warrants and represents to Licensee that:
(a) it has the right to grant to the Licensee a licence to use the Software set out in this Agreement;
(b) the use of the Software in accordance with the terms of this Agreement will not infringe the intellectual property rights of any third party; and
(c) the Software will perform substantially in accordance with its documentation and specification.
Excitech does not warrant that:
1. the operation of the Software will be uninterrupted or error-free; or
2. Software will meet Licensee’s particular requirements, whether or not those requirements have been made known to Excitech.
Acceptance is deemed to take place 10 working days from installation of the Software. You may obtain a full refund for the Software within this period, but no refund will be provided for any related services.
Licensee shall indemnify Excitech and keep Excitech fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with:
(a) any breach by Licensee of this Agreement;
(b) a breach by Licensee of copyright or other intellectual property or proprietary right; and
(c) a breach of confidence by the Licensee, his servants, agents, employees and contractors.
The parties shall not be liable for any of the following types of loss or damage even if the party has been advised of the possibility of such loss or damage:
(a) indirect or consequential loss;
(b) loss of profits, revenue, contracts or anticipated savings;
(c) loss arising out of any delay or loss of time; or
(d) loss or damage arising from loss, damage or corruption of any data.
Excitech shall not be liable for any defect to the extent it results from:
(a) use of the Software otherwise than in accordance with its documentation and this Agreement;
(b) any modification of the Software not carried out or authorised in writing by Excitech;
(c) failure of electric power or environmental control systems; or
(d) failure of hardware, software or other products or services not supplied by Excitech or any other matter beyond the reasonable control of Excitech.
Without prejudice to Clause 5.2 and Clause 5.3, the total liability of Excitech under or in connection with this Agreement whether in contract, negligence or otherwise, shall be limited to £5m. Excitech shall maintain Professional Indemnity and Product Liability insurance to indemnify the company against any such claim.
Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury caused by negligence, fraudulent misrepresentation or anything else which cannot be excluded or limited at law.
Limitations of liability shall not apply to (i) claims of infringement of another’s copyright, patent, trademark, or other intellectual property right and violations of a trade secret or other contractual right, or (ii) damages to a real or tangible personal property as a result of the negligent or intentional acts or omissions by Excitech.
The following payment terms only apply when purchasing Software direct from Excitech. Purchases via a reseller or any entity other than Excitech (the “Reseller”) will be subject to the Reseller’s terms & conditions.
The Licence Fee is due and payable in full prior to issue of the licence/s.
The Licence Fee shall be paid in full and cleared funds to a bank account nominated in writing by the Supplier.
Either party may terminate this Agreement at any time by giving 30 days' notice.
Either party may terminate this Agreement immediately if the other: fails to comply with any term or condition of this Agreement, becomes insolvent or is unable to comply for more than 21 days as a result of a Force Majeure event.
On expiry or termination of this Agreement, Licensee shall cease all use of the Software and shall promptly return or, at the option of Excitech, destroy all copies of the Software (including any documentation) in its possession or control.
All terms which by their nature, including clause 2, 5, and 11, should survive termination or expiration of this Agreement shall survive.
Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of the party under this Agreement.
If it is held under any enactment or rule of law that any provision of this Agreement is void or otherwise ineffective in whole or in part then any other part and the other terms and conditions of this Agreement shall continue in full force and effect.
Excitech may, without the prior written consent of Licensee show on the Excitech website and in customer presentations that Excitech are providing software or services to Licensee. Excitech may not without the prior written consent of Licensee use Licensee’s name in any paid advertising.
This Agreement is subject to Excitech’s general terms and conditions, the latest version of which can be found at any time at www.excitech.co.uk. Should any provisions of this Agreement and Excitech’s general terms and conditions be found conflicting, the terms of this Agreement shall apply.
Excitech may revise this Agreement at any time and it will notify the Licensee in writing before the changes are effective. Continued use of the Software after any such changes shall constitute the Licensee’s consent to such changes.
Any notice or consent required or given under this agreement shall be in writing, in English, either personally delivered or sent by email, or by first class airmail, and sent to the registered address of the receiving party or such other address as such party may from time to time designate by notice to the other party.
Communications shall be deemed to have been received as follows:
(if sent by post) three business days after posting;
(if delivered by hand) on the day of delivery, if delivered at least two hours before the close of business hours on a business day, and otherwise on the next business day;
(if sent by email) upon receipt of an acknowledgement email confirming the receipt of the email message, if received at least two hours before the close of business hours on a business day, and otherwise on the next business day. An automatic reply shall not be deemed as the acknowledgement of an email message
In this clause, “business hours” means between the hours of 09.00 and 17:30 GMT excluding weekends and UK bank holidays.
THIRD PARTY RIGHTS
The parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
This Agreement shall be governed by and construed in accordance with English law.
The English courts shall have exclusive jurisdiction to determine any disputes which may arise out of, under, or in connection with this Agreement.
AUTODESK MINIMUM TERMS AND CONDITIONS OF END LICENSEE LICENSE
1. Excitech grants to Licensee a non-exclusive license to use the Software under the following terms:
2. Licensee agrees not to alter, reverse engineer or disassemble the Software. Licensee will not copy the Software except: (i) as necessary to read the Software Application from the media into the memory of a computer solely for the purpose of executing it on a single machine (whether a stand alone computer or a workstation component of a multi-terminal system), or (ii) to create an archival copy. Licensee agrees that any such copies of the Software shall contain the same proprietary notices which appear on and in the Software.
3. Licensee may not install, access or otherwise copy or use the Software except as expressly authorized by this Agreement. Licensee may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software, or any rights granted in this Agreement, to any other person without the prior written consent of Excitech. Licensee may not install or access, or allow the installation or access of, the Software over the Internet for the purposes of making the Software available to third parties, including, without limitation, use in connection with a Web hosting or similar services. Licensee may not modify, translate, adapt, arrange, or create derivative works based on the Software for any purpose. Licensee may not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by Excitech or its licensors in connection with the Software, or use the Software together with any, authorization code, serial number, or other copy protection device not supplied by Excitech or its licensors. Licensee may not use or export the Software outside of the country of purchase for any reason. Licensee acknowledges that the Software is the confidential information of Excitech and its suppliers, and Licensee agrees that under no circumstances may Licensee disclose the Software to any third party. Title to and ownership of the intellectual property rights associated with the Software and any copies remain with Excitech and its suppliers.
4. Licensee is hereby notified that Autodesk, Inc., 111 McInnis Parkway, San Rafael, California 94903 (“Autodesk”) is a third-party beneficiary to this Agreement to the extent that this Agreement contains provisions which relate to Licensee’s use of the Software. Such provisions are made expressly for the benefit of Autodesk and are enforceable by Autodesk in addition to Excitech.
5. In no event shall Excitech or its suppliers be liable in any way for indirect, special or consequential damages of any nature, including without limitation, lost business profits, or liability or injury to third persons, whether foreseeable or not, regardless of whether Excitech or its suppliers have been advised of the possibility of such damages.