END-USER LICENSE AGREEMENT (EULA)

Effective Date: 10th of August 2018

PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THE SOFTWARE.

BY INSTALLING OR USING THE SOFTWARE, YOU AGREE ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE AND WHO IS BECOMING A PARTY TO THIS LICENSE AGREEMENT (“THE LICENSEE”) TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS EULA, TERMINATE THE INSTALLATION OF THIS SOFTWARE. YOU MAY THEN PROMPTLY DELETE THE LICENSE FILES AND SOFTWARE FROM YOUR COMPUTER AND RETURN THE LICENSE FILE MEDIA AND ANY OTHER ASSOCIATED ITEMS INCLUDING DOCUMENTATION WITHIN 30 DAYS OF PURCHASE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A FULL REFUND.  THIS EULA ALSO APPLIES TO ANY UPDATES OR PREPRODUCTION RELEASES OF THE SOFTWARE UNLESS SUCH UPDATES OR PREPRODUCTION RELEASE ARE ACCOMPANIED BY A SEPARATE END USER LICENSE AGREEMENT.

IF A SYSTEM INTEGRATOR, CONTRACTOR, CONSULTANT, OR ANY OTHER PARTY INSTALLS OR USES THE SOFTWARE ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF, AND YOU WILL BE DEEMED TO HAVE ACCEPTED ALL THE TERMS AND CONDITIONS CONTAINED IN THIS EULA AS IF YOU HAD INSTALLED OR USED THE SOFTWARE YOURSELF.

THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS.  

This End User License Agreement is entered into by and between j5 International Limited, a corporation organized and existing under the laws of the Isle of Man, British Isles with its principal place of business situated at Third Floor, European House, 22–24 Victoria Street, Douglas, IM1 2LE, British Isles (hereafter “j5 International”) and the Licensee.

Whereas j5 International has the exclusive right to develop, distribute and license an extensive platform of software products and whereas Licensee desires a non-exclusive license to use certain of the Products and whereas j5 International is willing to grant such a license on the terms and conditions set forth below.

1. DEFINITIONS

1.“Affiliate” means any other entity that controls, is controlled by or under common control with j5 International, where “control” means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation, or economic interest in the entity.

2.”Authorised Distributor” means j5 International or any of its authorised distributors.

3.”Client Order Schedule” – a document containing an order of the Products for use by the Licensee which has been approved by an Authorised Distributor, specifying which Products have been ordered, the number of Seat Licenses, Fees, and, where applicable, related support services and ancillary matters.

4. “Client System” means a computer-based system (i) which consists of hardware, firmware and/or software, developed, designed or assembled and implemented in whole or in part by Licensee, (ii) in which one or more products are embedded, and to which Licensee has added significant value through its development, design or assembly efforts, (iii) on which the Product is to be installed and (iv) in which the Product is not the majority component.

5. “Confidential Information” means, with respect to j5 International, the Products and other j5 International material, including but not limited to object and source codes, specifications, and any information in any format which either party clearly identifies as confidential or proprietary at the time of disclosure.

6. “Documentation” means all user manuals and other written materials provided on CD or hardcopy or accessible server or by direct electronic transmission to Licensee describing the installation, operation and maintenance of the Products.

7. “EULA” or “Agreement” means this j5 International End User License Agreement, as amended by j5 International from time to time.  

8. “Fees” means the license fees payable by the Licensee to j5 International or its authorised distributors in terms of this Agreement and as set out in a Client Order Schedule;

9. “Licensee” means the entity to which the Product is licensed as indicated on a Client Order Schedule;

10. “Permitted User” means an employee of the Licensee or such consultants as Licensee may appoint, subject to the Seat License and whose use of the Products shall be governed by the terms of this EULA;

11. “Product” means the software and computer programs in object code versions only together with the Documentation offered by j5 International and any ancillary data files, modules, libraries, tutorials, manuals, Software Updates, Software Upgrades (where applicable),  demonstration programs or other components, and copies of any of the aforegoing or portions thereof, that have been or will be used by the Licensee or a Permitted User;

12. “Seat License” means Licensee entitlement to use the Products on all Licensee’s computers, subject to a limited number of concurrent seats or named users, as indicated in the Client Order Schedule.

13. “Software Updates” are releases of the Products that remedy a software defect subject to 8.3.

14. “Software Upgrades” are releases of the Products that provide performance or other enhancements, at most biannually.

2. GRANT OF LICENSE

1. Installation and Use. Subject to Licensee abiding by the terms of this Agreement and subject to clause 2.2 below, j5 International hereby grants Licensee, and Licensee agrees to pay for, a perpetual (unless licenses are granted for a defined period), non-exclusive license to install and use copies of the Products on its Client System, running a validly licensed copy of the operating system for which the Products were designed.  Except as set forth in this Agreement, no license is granted or shall be deemed granted by implication or otherwise.

2. Evaluation Period. Should the Products be used for an evaluation period, as agreed with j5 International, then, subject to Licensee abiding by the terms of this Agreement, j5 International hereby grants Licensee a limited, non-exclusive license to install and use copies of the Products on its Client System, running a validly licensed copy of the operating system for which the Products were designed, for a period of 60 (sixty) days for this purpose.  Should the Licensee decide not to continue with the Agreement and pay the Fees after the 60 (sixty) days evaluation period, then the Licensee shall immediately cease all use of the Products and remove all copies of the Products from its Client System.

3. PROPERTY RIGHTS

1. Intellectual Property Rights.  The Products are licensed to Licensee, not sold. The Licensee acknowledges that any and all Intellectual Property rights of j5 International subsisting in or used in connection with the Products are and shall remain unchanged.  The Licensee shall not, during or at any time after the expiry or termination of this EULA, in any way question or dispute the ownership of the Products. In the event that product enhancements, excluding configuration, arise in performance of or as a result of this EULA, the Licensee acknowledges that such enhancements shall be the property of j5 International, unless otherwise agreed in writing by j5 International, and Licensee hereby assigns all rights in them (including moral rights) to j5 International or its designated Affiliate. To the extent that Intellectual Property Rights embodied therein are not eligible to be transferred by operation of the law, j5 International or its Affiliate shall be granted exclusive rights to use to the widest extent lawfully possible.   Licensee agrees not to, directly or indirectly, register, apply for registration or attempt to acquire any legal protection for any of the Products or any proprietary rights therein or to take any other action that may adversely affect j5 International’s right, title or interest in or to the Products in any jurisdiction.

2. Notices. All copyright, trademark and other proprietary and intellectual property notices will be preserved and conspicuously displayed in connection with all use of any Products or any reproduced portion thereof. Licensee may not remove or alter any such notices.

3. Distribution and Rental. Licensee may not distribute a copy of the Products to any third party and may not rent, lease, or lend the Products or any portion thereof to any third party.

4. Confidentiality.  Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this EULA. Any such reproduction of Confidential Information shall remain the property of the disclosing party and retain confidential or proprietary markings.  Parties shall take all reasonable steps to keep Confidential Information of the other party strictly confidential except as necessary to enable it to exercise its rights under this EULA or comply with a law, governmental regulation or court order. “Reasonable Steps” as used above means those steps the party receiving the Confidential Information takes to protect its own proprietary and confidential information, which shall not be less than a reasonable standard of care.  Confidential Information of either party, disclosed prior to the execution of this EULA, shall be subject to the protections afforded in terms of this Agreement. The restrictions referred to above shall not apply to any information (a) that was independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (b) that is lawfully received free of restriction from a third party (in which case “third party” shall not include any of j5 International’s Affiliates) having the right to furnish such information, (c) has become generally and legally available to the public without breach of this EULA by the receiving party, (d) at the time of disclosure was known to the receiving party free of restriction, or (e) the disclosing party agrees in writing is free of such restrictions.

5. Licensee acknowledges and agrees that, in the event of a breach by Licensee of its obligations under this Section 3, j5 International may immediately and unilaterally terminate this Agreement without liability and may bring appropriate legal action to enjoin any such breach hereof, and will be entitled to recover from Licensee reasonable legal fees and costs in addition to any other appropriate relief.

4. LICENSOR’S LIABILITY

1. j5 International shall not be liable to the Licensee for any loss or damage whatsoever or howsoever caused, arising directly or indirectly in connection with this EULA, the Products, its use or otherwise, except to the extent to which it is unlawful to exclude such liability under the applicable law.

2. Notwithstanding the generality of clause 4.1 above, j5 International expressly excludes liability for any indirect, special, incidental or consequential loss or damage which may arise in respect of the Products, its use or in respect of equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.

3. In the event that any exclusion contained in this EULA shall be held to be invalid for any reason and j5 International becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the one-time fee (for perpetual licenses) or three times the annual fee, as paid under this EULA.

4. The Licensee acknowledges that software in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this EULA.

5. In the event that the Licensee discovers a material error which substantially affects the Licensee’s use of the Products and notifies j5 International of the error within 90 (ninety) days from the installation date (the “warranty period”), j5 International shall, at its sole option, either refund the fee or use all reasonable endeavours to correct, by patch or update (at its option), that part of the Products which does not so comply, provided that such non-compliance has not been caused by any modification, variation or addition to the Products not performed by j5 International or caused by the Licensee’s incorrect use, abuse or corruption of the Products or by use of the Products with other software or on equipment with which it is incompatible.

6. To the extent permitted by applicable law, j5 International disclaims all other warranties with respect to the Products, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.

7. Although j5 International does not warrant that the Products supplied hereunder shall be free from all known viruses, it has used commercially reasonable efforts to check for the most commonly known viruses prior to packaging, but the Licensee is solely responsible for virus scanning the Products.

8. j5 International warrants that there are no disabling programs or devices in the Products.

5. LICENSE RESTRICTIONS

The Products are provided for use in the internal business operations of the Licensee, including internal testing and training.  Any use of the Products not permitted by this Agreement is prohibited and, without limiting the generality of the aforegoing, the Licensee undertakes not to perform any of the acts referred to in this clause, except and only to the extent required by an applicable law and only then for the specific limited purposes stated in such applicable law or hereunder.  The Licensee undertakes

1. not to permit persons other than Permitted Users to access or use the Products or any part thereof without prior written consent from j5 International;

2. not to use the Products in breach of any applicable law or regulation, including but not limited to those relating to import and export;

3. not to copy or otherwise reproduce the Products except for backup and archival purposes;

4. not to translate, adapt, vary, or modify the Products, but excluding configuration changes;

5. not to disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code of the Products;

6. not to use the products for service-bureau, software rental, time-sharing or data services to any third party;

7. to maintain accurate, up-to-date records of the number of Seat Licenses and the location of all copies of the Products;

8. to supervise and control use of the Products in accordance with the terms of this EULA and the Documentation;

9. to facilitate the audit of its compliance with this EULA by the appointed representative of j5 International; and

10. within 14 (fourteen) days after the date of termination or discontinuance of this EULA for whatever reason, to return or destroy (as j5 International shall instruct) the Products and all Documentation or copies, in whole and in part, in any form including partial copies or modifications of the Products and to furnish j5 International with a certificate, certifying that it has been done, unless the Licensee has obtained j5 International’s prior written authorisation to retain 1 (one) copy for archive purposes only or for such other purpose which j5 International may authorise together with any conditions j5 International may impose in respect of such continued retention.

6. TERM AND TERMINATION

This Agreement is effective until terminated.  Licensee’s rights under this Agreement will terminate automatically or otherwise cease to be effective without notice from j5 International if Licensee fails to comply with any term(s) of this Agreement. Upon the termination of this Agreement, Licensee shall cease all use of the Products.

7. PAYMENT

1. In consideration for the license granted in terms of this Agreement, the Licensee shall pay the Fees.

2. Additional Fees are payable for each Client System or geographical site upon which the Licensee wishes to use the Product or in respect of Seat Licenses in excess of the number legitimately purchased from an Authorised Distributor.

3. All charges hereinbefore referred to are exclusive of and net of any taxes, duties or such other additional sums including, but not limited to, excise tax, import or other duties, and whether levied in respect of this EULA or the use of the Product.

8. MAINTENANCE AND SUPPORT

1. No software maintenance is provided under this EULA, except for Software Updates.

2. Software Updates will be made available upon emailed request by the Licensee to j5 International as and when they become available; in machine-readable format; accompanied by documentation in electronic form; by a single communication to a single server machine or by the provision of a link to an executable file to an email address, as specified in a Client Order Schedule; and subject to the terms and conditions of this EULA. 

3. Software Updates exclude services associated with their installation and customization, except if agreed otherwise; product extensions to cater for different hardware or windowing or operating system platforms; remedies for Software Upgrades more than 5 (five) years after their general release; the resolution of any difficulties, whether performance-related, incompatibilities, or other, arising from custom applications configured by the Licensee, or a Licensee-written or third party application; and Software Upgrades.

4. j5 International provides Software Upgrades and support services to licensees under a separate agreement.  Such agreement, if entered into by the Parties, shall not supercede this Agreement on the matters it addresses.

9. GENERAL PROVISIONS

1. Severability. It is the intent of the parties that in the event of any one or more of the provisions of this Agreement being held invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.

2. Assignment. Licensee may not, without j5 International’s prior written consent, assign, delegate, pledge or otherwise transfer this Agreement or any of its rights and obligations in terms hereof to any party. j5 International may assign this Agreement to any of its affiliates.

3. Partnership or Agency. Nothing in this Agreement shall give rise or be deemed to give rise to any partnership or agency between the parties.

4. Whole Agreement.  This license agreement represents the entire agreement concerning the Products between Licensee and j5 International and it supersedes any prior proposal, representation, or understanding between the parties.  

5. No Waiver. The rights of each party under this EULA may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law, and may be waived only in writing and specifically. Delay in exercising or non-exercise of any right is not a waiver of that right.

6. Force Majeure. Any non-performance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach.

7. Publicity. Neither party shall use the name of the other party in publicity, advertising or similar activity, without the prior written consent of the other party having been obtained, except that Licensee agrees that j5 International may use Licensee’s name and/or logo in customer/client listings, including on its website.

8. Disputes. This Agreement shall be governed by and construed in accordance with the laws of the England and Wales, where, unless otherwise agreed in writing between the parties, any dispute regarding this EULA shall be adjudicated.

9. Miscellaneous.  The Products make use of open source libraries.  Their distribution with the Products confers no rights for the Licensee to the source code of the Products.  The provisions of the Uniform Computer Information Transactions Act shall not apply to this EULA. Oracle America, Inc. is a beneficiary of this agreement.

10. OSIsoft Software.  If any software from OSIsoft LLC is included with the Products, it may be used solely with the Products.  Licenses to use OSIsoft Software beyond the Product may be ordered from OSIsoft at orders@osisoft.com or +1(510)297-5862.  Ordering indicates assent to OSIsoft’s then-current standard license and technical support service terms.  j5 International makes no representations or warranties on behalf of OSIsoft.

11. SAP Mobile Platform.  If SAP Mobile Platform is included with the Products, Licensee undertakes to use it only with the Products and with the sole purpose of enabling performance of the Products and integrating data from the Products, and with data access limited to data created or necessary to enable the functionalities of the Products, and not to access, directly or indirectly, in any manner whatsoever, any non-SAP runtime database other than separately licensed business applications on a business process layer via APIs.

12. Amendments.  Amendments and modifications to this Agreement will apply if included in a Software Upgrade which has been installed or used by the Licensee unless agreed otherwise in writing and signed by the Parties.

13. If any translation of this Agreement done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by law.

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