SOFTWARE LICENCE AGREEMENT - PlanUp ('the Software')


THIS IS A SOFTWARE LICENCE AGREEMENT BETWEEN PROTOTEC SOFTWARE LIMITED (a limited company registered in England under number 03890667) (‘THE LICENSOR’) AND YOU (‘THE LICENSEE’).

1. Acknowledgement

YOU MUST READ AND ACCEPT ALL OF THE TERMS AND CONDITIONS SET OUT BELOW BEFORE YOU ARE ENTITLED TO INSTALL OR USE THE SOFTWARE BY CLICKING THE [I ACCEPT] BUTTON AT THE END OF THIS LICENCE. BY CLICKING THE [I ACCEPT] BUTTON AND INSTALLING THE SOFTWARE, YOU AGREE TO BECOME THE LICENSEE UNDER THIS LICENCE AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT. YOU ALSO AGREE THAT THIS LICENCE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS LICENCE AGREEMENT.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENCE AGREEMENT, CLICK THE [I DO NOT AGREE] BUTTON AND DO NOT INSTALL OR USE THE SOFTWARE.

 Depending upon the payment structure that the Licensee selects, the Licence granted by this Licence Agreement may be either a perpetual licence for the full term of the copyright and other intellectual property rights of the Licensor in the Software (‘a Perpetual Licence’) or for a limited term or successive terms subject to the payment of a renewable Licence fee (‘a Rental Licence’). The Licensee may not transfer its licence from being a Perpetual Licence to a Rental Licence or vice versa without the Licensor’ prior written consent and subject to paying such fees as shall be applicable to such transfer.

The terms of this Licence Agreement shall continue to apply throughout the term of a Perpetual Licence save as varied or affected by law. For Rental Licences, the Licensor may vary the terms of this Licence upon not less than one calendar month’s prior written (including email) notice from the Licensor; such reviewed terms shall take effect on expiry of the notice, unless the Licensee has notified the Licensor within this notice period that it wishes to terminate the Licence.

 2. The Licence

By clicking the [I Accept] button you accept and the Licensor (which expression shall include its subsidiaries, agents, successors and assigns) grants you a non-exclusive, non-transferable licence to "Use" (as hereinafter defined) the Software, including (if applicable) electronic documentation and associated material, on a single computer or other processing device (‘the System’) for a single user or by the maximum number of concurrent users otherwise specified by the Licensor for the purposes of this Licence, subject to the conditions contained herein. Where the Software is issued in multi-media, multi-disk format (being either different disk size or different system compatibility) only one format which is compatible with the System may be installed and used. Any other format may not be used and should be destroyed.

This Licence entitles the Licensee to:

(a) load, install and Use the Software on one Central Processing Unit ("CPU") of the System (a separate licence fee being required for each CPU upon which the Licensee wishes to use the Software), or, if the Licensee's System is multi-user, by a maximum number of concurrent users specified below; and

(b) use the Software in accordance with the following provisions of this Licence.

The Licensee may not copy or transfer the Software from one System to another nor use the Software over a network save as expressly provided in the Licence.

3. Use of the Software

(a) For the purposes of this Licence, "Use" shall mean and include:

(i) utilisation of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing Into the permanent memory (e.g. hard disk, CD ROM or other storage device) of the System for the processing of the System instructions or statements contained in such Software;

(ii) copying the Software which is in machine-readable form for Use by the Licensee on the System for the purposes only of understanding the contents of such machine-readable material and for back-up provided that no more than two (2) copies (including the original) will be in existence under any Licence at any one time without prior written consent from the Licensor or as otherwise permitted by the applicable law; any copy must maintain the same copyright information as the original;

(iii) merging the whole or any part of the Software in machine-readable form into another software program;

(iv) storing the whole or any part of the Software on the System;

(v) utilising (but not copying) the instructional and/or operational manuals relating to the Software.

(b) For the purposes of this Licence "concurrent use" shall mean simultaneous use of the Software by the number of users of the Licensee specified by the Licensor PROVIDED however that Software installed on a file server for the sole purpose of distribution to other workstations or computers is not being Used for the purposes of ascertaining the number of concurrent users. Additional concurrent users may only be added by signing a separate licence agreement with the Licensor or by acquiring a separate new disk package.

(c) The exception to the restrictions on use set forth in this Licence is the authorised trial version of PlanUp. The trial version may be freely distributed by any party or individual. The trial version of PlanUp is entirely free to install and use for a limited period. The definition of trial version can be obtained from the Licensor on request.

4. Licence Fee - Perpetual Licences

Payment of the applicable Perpetual Licence fee entitles the Licensee to Use the Software on the System for the full term of the copyright and other intellectual property rights of the Licensor in the Software, subject to the terms and conditions of this Licence Agreement.

5. Licence Fee and ‘Unlock Codes’ - Rental Licences

(a) This Licence, for a Rental Licence arrangement, is subject to the payment of a monthly licence fee. Failure to pay annual licence fees to the Licensor by the due date will result in the customer not being licensed to use the Licensor’s software. Payment will be required by Worldpay, direct bank transfer to the Licensor’s nominated account, or such other means as the Licensor may notify to the Licensee from time to time. Payment is required in advance of each monthly licence period.

(b) The Licensor operates a system whereby 'unlock codes' are issued to the Licensee so that the Software will continue to function on the System. The unlock code system is a means of preventing software piracy and the non-payment of invoices. The unlock code system will be disabled by the Licensor once a customer's account has been settled in full or at the Licensor’s discretion.

(c) Monthly licence fees may be subject to review upon not less than [one calendar month’s] prior written (including email) notice from the Licensor. Such reviewed monthly licence fee shall take effect on expiry of the notice, unless the Licensee has notified the Licensor within this notice period that it wishes to terminate this Licence or cancels its payments of the licence fee, thereby terminating the Licence at the end of the current paid for month.

(d) An additional Licence fee is payable for each CPU of the System upon which the Licensee wishes to Use the Software or in respect of additional concurrent users in excess of the maximum authorised number. In the event that the Licensee's System is inoperable or requires or is under repair, the Licensee shall be permitted to Use the Software on a back-up system at no extra charge, until the System is operational. The Licensee will need to contact the Licensor to obtain an appropriate ‘unlock code’ for the back up system.

(e) All charges referred to in this Licence are exclusive of and net of any taxes, duties or such other additional sums including (but without prejudice to the generality of this provision) value added/purchase tax, excise tax, import or other duties, and whether levied in respect of this Licence, the Software, its use or otherwise.

6. Support, Software Enhancement and Other Services – Perpetual Licence

The Software is provided ‘as is’ for use by the Licensee in accordance with the terms of this Licence Agreement and support and updates may be provided to the Licensee entirely at the discretion of the Licensor. In the event of a new version of the Software becoming available, the Licensee may need to acquire a new licence for the use of such new version of may continue to use the Licensee’s current licensed version.

7. Support, Software Enhancement and Other Services – Perpetual Licence

(a) Support and regular updates are supplied free as part of the monthly licence fee. Support and regular updates will not be subject to an official contract or agreement and the Licensor reserves the right to refuse support at its discretion. However, the scope of the support service that the Licensor currently provides has been defined in a support definition document and is available from the Licensor upon request.

(b) As part of the Licensor’s support service, updates to software will periodically be made available for download from the Licensor’s web site.

(c) The Licensor may additionally offer information on upgrades to, adaptation of, customisation, and other enhancements of the Software at such cost as may be notified to the Licensee. Scheduling of such additional services will be done by the Licensor, and is not guaranteed to be undertaken within any given time period.

8. Licensee's Undertakings

(a) The Licensee undertakes not to perform any of the acts referred to in this clause except to the extent and only to the extent permitted by the applicable law to the Licensee as a lawful user (i.e. a party with a right to the use) of the Software and only then for the specific limited purpose stated in such applicable law or hereunder. The Licensee undertakes:

(i) not to copy the Software (other than for normal System operation and as specified above) nor otherwise reproduce the same PROVIDED THAT the Licensee may copy the Software for back-up purposes, or incidentally in the course of converting the Software in accordance with sub-clause (a)(iii) below;

(ii) not to translate, adapt, modify, lease, rent, loan, redistribute, sub-lease, sub-licence, or create derivative works from, the Software;

(iii) not to disassemble, decompile or reverse engineer the Software provided however that in the case of decompilation, the Licensee may incidentally decompile the Software only if it is essential so to do in order to achieve interoperability of the Software with another software program ("Permitted Purpose") and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party whom it is not necessary to disclose or communicate such information without the Licensor's prior written consent and is not used to create any software which is substantially similar to the expression of the Software nor used in any manner which would be restricted by copyright;

(iv) not to display the Software on a public bulletin board, ftp site, website, chat room or by any other unauthorised means.

(b) The Licensee undertakes:

(i) to ensure that its employees, agents and other parties who will use the Software are notified of this Licence and the terms hereof prior to such employee, agent or party using the same;

(ii) to reproduce and include the copyright notice of the Licensor or such other party as may be specified in or on the Software (the "Licensor") on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software made herein;

(iii) not to provide or otherwise make available the Software in whole or in part (including where applicable, but not limited to program listings, object code and source program listings, object code and source code), in any form to any person other than the Licensee's employees or as specified in (b)(i) above without prior written consent from the Licensor.

(iv) within 14 days after the date of termination or discontinuance of this Licence for whatever reason, to destroy the Software and all updates, upgrades or copies, in whole and in part, in any form including partial copies or modifications of the Software received from the Licensor or made in connection with this Licence, and all documentation relating thereto.

9. Limited Warranty

THE LICENSEE ACKNOWLEDGES THAT SOFTWARE IN GENERAL, INCLUDING THE SOFTWARE, IS NOT ERROR-FREE AND AGREES THAT THE EXISTENCE OF SUCH ERRORS SHALL NOT CONSTITUTE A BREACH OF THIS LICENCE.

In the event that the Licensee discovers a material error which substantially affects the Licensee's use of the Software and notifies the Licensor of the error within 90 days from the date of payment of the licence fee (the "warranty period") the Licensor shall at its sole option either refund the licence fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not comply PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Software not performed by the Licensor nor by its incorrect use, abuse or corruption of the Software nor by use of the Software with other software or on equipment with which it is incompatible.

10. Warranty Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENCE, ALL PRODUCTS AND SERVICES ARE FURNISHED BY PROTOTEC SOFTWARE LIMITED AND ACCEPTED BY THE LICENSEE "AS IS," WITHOUT ANY WARRANTY WHATSOEVER.

ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF OR AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE INFOR­MATION, INFRINGEMENT, ACCURACY, COMPATIBILITY, INTEGRATION, TITLE, SUITABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE (TO THE FULLEST EXTENT PERMITTED BY LAW) SPECIFICALLY EXCLUDED AND DISCLAIMED BY THE LICENSOR.

THE LICENSOR DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES PROVIDED HEREUNDER WILL MEET THE LICENSEE’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PRO­VIDED IN THIS LICENCE AGREEMENT, THE ENTIRE RISK AS TO THE QUALITY AND PERFORM­ANCE OF THE PRODUCTS AND SERVICES PROVIDED AND THE ACCURACY OR QUALITY OF THE INFORMATION TRANSMITTED OR RECEIVED VIA THE PROD­UCTS AND SERVICES IS WITH THE LICENSEE. IN PARTICULAR, BUT WITHOUT LIMITING THE GENERALITY OF THIS CLAUSE, THE LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS NOT INTENDED FOR ARCHITECTURAL OR SURVEY PURPOSES AND THE RESULTS GENERATED BY THE SOFTWARE ARE FOR ILLUSTRATIVE PURPOSES ONLY AND THE LICENSOR DISCLAIMS ALL LIABILITY IN RESPECT OF THE LICENSEE’S OR ANY OTHER PERSON’S RELIANCE ON THE RESULTS.

11. Limitation Of Liability

(a) The Licensor shall not be liable to the Licensee for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Licence, the Software, its use or otherwise, except to the extent that such liability may not be lawfully excluded under applicable law. IN PARTICULAR, BUT WITHOUT LIMITING THE GENERALITY OF THIS CLAUSE, THE LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS NOT INTENDED FOR ARCHITECTURAL OR SURVEY PURPOSES AND THE RESULTS GENERATED BY THE SOFTWARE ARE FOR ILLUSTRATIVE PURPOSES ONLY AND THE LICENSOR DISCLAIMS ALL LIABILITY IN RESPECT OF THE LICENSEE’S OR ANY OTHER PERSON’S RELIANCE ON THE RESULTS AND ANY OF THE LICENSEE’S AND ANY OTHER PERSON’S OBLIGATIONS UNDER THE PROPERTY MISDESCRIPTIONS ACT 1991 OR OTHER SIMILAR LEGISLATION IN ANY JURISDICTION.

(b) Notwithstanding the generality of (a) above, the Licensor expressly excludes liability for indirect, special, incidental or consequential loss or damage which may arise in respect of the Software, its use, the System or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.

(c) In the event that any exclusion contained in this Licence shall be held to be invalid for any reason and the Licensor becomes liable for loss or damage that may lawfully be limited, such liability shall, in the case of a Perpetual Licence, be limited to the licence fee paid by the Licensee for the Software and, in the case of a Rental Licence, be limited to the aggregate licence fee paid by the Licensee during the 12 calendar months preceding the date of first act or omission giving rise to such liability.

(d) The Licensor does not, and nothing in this Licence Agreement shall, exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of the Licensor, its employees, agents or authorised representatives.

(e) The Licensee acknowledges that the Licensor has set its prices and entered into this Licence in reliance upon the Warranty Disclaimer and Limitation of Liability set forth in this Licence, and that the same form an essential basis of the bargain between the parties. The parties agree that the Limitation of Liability specified in this Licence will survive and apply even if the Warranty Disclaimer or any Limitation of Liability is found to have failed of its essential purpose.

12. Copyright, Patents, Trade Marks and Other Intellectual Property Rights

The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used or in connection with the Software including all documentation and manuals relating thereto are and remain the sole property of the Licensor. The Licensee shall not during or at any time after the expiry or termination of this Licence in any way question or dispute the ownership by the Licensor.

13. Confidential Information

(a) All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Licence and that it shall not at any time during or after expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without the Licensor's prior written consent.

(b) Subject only to the specific, limited Permitted Purpose of clause 7 (a) (iii) above, the Licensee further agrees that it shall not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor shall the Licensee sell, lease, licence, sub-licence or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor.

(c) The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.

14. Force Majeure

The Licensor shall be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of this Licence arising by reason of any matter beyond the reasonable control of the Licensor or otherwise by force majeure.

15. Termination

(a) In addition to provisions for termination as herein provided, the Licensor may by notice in writing to the Licensee terminate this Licence immediately if the Licensee is in material breach of any term, condition or provision of this Licence or required by the applicable law which is incapable of remedy by the Licensee or if such breach is capable of remedy upon the Licensee failing to remedy such breach within 30 days of having received written notice from the Licensor specifying such breach.

(b) Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Licence or under the applicable law.

16. Assignment

The Licence is personal to the Licensee who may not assign or otherwise transfer all or any part of the Software or this Licence without the prior written consent of the Licensor.

17. Waiver

Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice that party's rights to take subsequent action.

18. Severability

In the event that any of these terms and conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.

19. Law and Jurisdiction

The parties hereby agree that the Licence concluded between them and constituted on these terms and conditions shall be construed in accordance with English law and the parties agree to subscribe to the exclusive jurisdiction of the English court.

20. Legal notices

PlanUp is protected by copyright and international treaties. Unauthorised reproduction of software, wholly or partially, owned by the Licensor may result in civil and criminal penalties. Source code to programs written by the Licensor is the sole and exclusive property of the Licensor.

Internet web sites produced by the Licensor are subject to the terms and conditions found therein.

PlanUp is the copyright of the Licensor. All database rights and other intellectual property rights and like proprietary rights subsisting in or used in connection with the Software are and remain the property of the Licensor. ALL RIGHTS ARE RESERVED.