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Software License Agreement

Software License Agreement

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Software License Agreement

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This license states the terms and conditions upon which ePrint Direct Limited (registered in England under company number 3822615) whose registered office is at Second Floor, Gateway House, Fretherne Road, Welwyn Garden City, Hertfordshire, AL8 6NS, United Kingdom. ("ePrint Direct") offers to license to you ("the Licensee") the Licensed Software. If you do not agree with these terms do not open the media package or install the Licensed Software, and return the entire media package to whoever you obtained it from within 30 days of receipt, for a full refund of the license fee element for the license to use the Licensed Software.

1. Definitions.

In this license:

a)"Documentation" means the user guides, manuals, release notes, specifications, instructions and all documents and materials (whether or not of a similar nature and whether or not in writing and on whatever media) that ePrint Direct makes generally available in connection with the Licensed Software. Documentation does not include program or source code listings.
b)"End Users" means the customers or end users who use ePrint Direct Driver Software attaching to the Server Software licensed by the Licensee.
c)"Intellectual Property Rights" means all copyrights, database rights, patents, design rights, registered designs, trade marks, service marks, topography rights or other intellectual property or proprietary rights (whether registered or unregistered) and applications for the same, anywhere in the world.
d)"Licensed Materials" means the Licensed Software, Modifications and the Documentation.
e)"Licensed Software" means the computer programs supplied by ePrint Direct.
f)"Modification" means any change, amendment, enhancement, modification, update, upgrade, new version or new release of the Licensed Software made available to the Licensee.
g)"Object Form" means the version of the Licensed Software in machine readable form.
h)"Driver Software" means the client element of the Licensed Software, which the End User uses to send instructions for a print request.
i)"Server Software" means the server element of the Licensed Software, which receives instructions for a print job from an End User.
j)"Reseller" means any authorized reseller from whom the Licensee has obtained a copy of the Licensed Software.
k)"Third Party Software" means any third party software with which the Licensed Software is used (including without limitation portable document file software).
l)"Trial Period" has the meaning given to it in Clause 5.
m)The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this license.
n)Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership; and
o)References to Clauses are to clauses of this license.

2. License.

a)License Grant: Subject to the terms and conditions of this License, ePrint Direct grants to the Licensee a non-exclusive, non-transferable, non-sublicensable license during the term of this License to install and use one copy of the Licensed Software on a single computer used by the Licensee. The Licensee is hereby granted a license to use the Documentation only in conjunction with the installation and use of the Licensed Software.

3. Ownership; Copies; Restrictions.

a)The Licensee acknowledges that as between the Licensee and ePrint Direct all right, title and interest in and to the Licensed Materials and all Intellectual Property Rights therein, are and shall remain the sole property of ePrint Direct. The Licensee acknowledges that except for the express limited rights and licenses granted herein, no such right, title or interest in these items is granted to the Licensee and that no such assertion shall be made by the Licensee. The Licensee and End User is granted only limited rights as set forth herein, which rights are subject to termination in accordance with Clause 9 of this License.
b)Except as expressly permitted under the terms of this License or any other written agreement between the parties, the Licensee is prohibited from renting, leasing, distributing, assigning, sub-licensing, or loaning the Licensed Materials.
c)Except as expressly permitted under the terms of this License or any other written agreement between the parties, the Licensee is prohibited from copying, modifying, adapting, merging, translating, reverse engineering, decompiling, disassembling or creating derivative works of the Licensed Materials.
d)Except as expressly permitted herein the Licensee shall not make any additional copies of the Licensed Materials. The Licensee shall record the number and location of all copies of the Licensed Software (including without limitation Modifications) and take all reasonable steps to prevent unauthorized copying. All authorized copies of the Licensed Software (including without limitation Modifications) shall contain all copyright notices or proprietary legends specified by ePrint Direct. All complete or partial copies made by or on behalf of the Licensee shall remain in Licensee's possession and location and under the Licensee's control.
e)The Licensee shall be permitted to use the Licensed Software (including without limitation Modifications) in Object Code form only for the Licensee's normal internal business purposes of printing.
f)Except as expressly permitted herein the Licensee shall not sell or sub-license nor attempt to sell or sub-license the Licensed Materials nor, except to the extent expressly permitted by law, copy, adapt, reverse engineer, decompile or disassemble the whole or any part of the Licensed Software (including without limitation Modifications).
g)The Licensee shall ensure that the copyright and trade mark notices of ePrint Direct appear on all Licensed Materials.
h)Upon the Licensee becoming aware of any improper or wrongful use of the Licensed Materials, the Licensee shall inform ePrint Direct of such use and shall (if requested) assist ePrint Direct in taking any steps in connection with the protection or defense thereof as ePrint Direct may determine.

4. Confidentiality.

a)As a consequence of this License, the parties may have access to information that is confidential to one another ("Confidential Information"). ePrint Direct's Confidential Information shall include, without limitation, the Licensed Materials and any complete or partial copies thereof, including source and object code, and the terms and pricing under this License. Confidential Information also includes without limitation information relating to the disclosing party's business or financial affairs, such as financial results, business methods, pricing, competitor and product information and all other information designated as confidential. A disclosing party's Confidential Information shall not include any information which the receiving party can show (i) is part of the public domain through no act or omission of the receiving party; (ii) is lawfully acquired by the receiving party from a third party without any breach of confidentiality; or (iii) is disclosed to the receiving party by a third party who is under no obligation of confidentiality. The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the disclosing party's Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Without limiting the generality of the foregoing, the Licensee shall not permit any personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by ePrint Direct or owners of Third Party Software.
b)The obligations of confidentiality in this Clause 4 shall not extend to any matter which the receiving party can show is required to be disclosed under any applicable law or by order of a court or governmental body or authority of competent jurisdiction, but in this case the receiving party shall give the other party as much notice as possible before disclosure and shall provide all assistance reasonably required by the other (at the other's cost) with resisting such disclosure.
c)Each party acknowledges that any use or disclosure of the other party's Confidential Information in a manner inconsistent with the provisions of this License may cause the disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
d)The terms and provisions of this Clause 4 shall survive any termination of this License for any reason for as long as the Confidential Information remains confidential.

5. Trial Period and Acceptance.

a)During the first 30 days from installation of the Licensed Software, the Licensee may use Licensed Software in accordance with this License as a trial period ("Trial Period").
b)If the Licensee would like to continue using the Licensed Software after the end of the Trial Period, the Licensee shall complete ePrint Direct's registration process in force at the time. By completing that process, the Licensee confirms that it has already accepted this License and the Licensee shall be deemed to have accepted that the Licensed Software conforms in all material respects in accordance with the specifications set forth in the Documentation. Upon completion of the registration process the Licensee shall have a perpetual license to use the Licensed Software, subject to termination of the license in accordance with Clause 9.

6. Warranties.

a)ePrint Direct warrants that the Licensed Software will conform in all material respects in accordance with the specifications set forth in the Documentation current at the time the Licensed Software is initially supplied to the Licensee, for a period from delivery until acceptance of the Licensed Software by the Licensee in accordance with Clause 5.
b)ePrint Direct does not warrant that the functions contained in the Licensed Software or in any Modification will meet the requirements of the Licensee or that the operation of the Licensed Software or Modification will be uninterrupted or error-free.
c)ePrint Direct is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Licensed Software or Modification is procured, nor is ePrint Direct responsible for problems which occur as a result of use of the Licensed Software in conjunction with Third Party Software or with hardware which is incompatible with the operating system for which the Licensed Software is being procured or for use of the Licensed Software other than in accordance with the Documentation.
d)ePrint Direct shall not be responsible for any error or defect in the Licensed Software (or Modification) resulting from any: (i) modification or change to the Licensed Software or Modification which is not done by or on behalf of ePrint Direct; (ii) misuse of or damage to the Licensed Software or Modification after it has been received by the Licensee; or (iii) failure of the Licensee to notify ePrint Direct of the existence and nature of such nonconformity or defect promptly upon its discovery.
e)Except where expressly provided for within this License, the Licensed Materials are provided "as is" and without a warranty of any kind (including without limitation any implied warranties, terms or conditions of quality or fitness for a particular purpose or use of reasonable skill and care) and ePrint Direct expressly excludes all conditions, warranties, terms and representations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law.

7. Limitation of Remedies.

a)Subject to the rest of this Clause 7, ePrint Direct's entire liability and the Licensee's and End Users' exclusive remedies for breach of ePrint Direct's warranty obligations in Clause 6 shall be that the Licensee may terminate the License and receive a refund from whoever it paid the license fee to use the Licensed Software (whether ePrint Direct or a Reseller) for the fee representing the Licensed Program license element (less a reasonable sum in respect of the Licensee's use of the Licensed Software to the date of termination), or at ePrint Direct's option to repair or replace the Licensed Software. In the event that the Licensee obtains a refund for the Licensed Software license fee, the License shall immediately terminate.
b)This Clause 7 prevails over all other Clauses and sets forth the entire liability of ePrint Direct to the Licensee and its End Users, and their sole and exclusive remedies against ePrint Direct in respect of:
i)the Licensed Materials supplied by or on behalf of the ePrint Direct; or
ii)otherwise in relation to the Licensee entering into the License.
c)ePrint Direct does not exclude or limit its Liability for:
i)death or personal injury caused by its Breach of Duty; or
ii)any breach of the obligations implied by English law under Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
iii)any other Liability which cannot be excluded or limited by applicable law.
d)Subject to the rest of this Clause 7, ePrint Direct does not accept and hereby excludes any Liability for Breach of Duty other than any liability arising pursuant to the terms of the License.
e)Subject to the rest of this Clause 7, ePrint Direct shall not have any Liability to the Licensee and the End Users in respect of any:
i)indirect, consequential, special, exemplary or incidental losses, damages, costs or expenses;
ii)loss of actual or anticipated profits;
iii)loss of contracts;
iv)loss of use of money;
v)loss of anticipated savings;
vi)loss of revenue;
vii)loss of goodwill;
viii)loss of reputation;
ix)loss of business;
x)loss of operation time;
xi)loss of opportunity; or
xii)loss of, damage to or corruption of, data, suffered by the Licensee or End Users in respect of the Licensed Materials whether or not such losses were reasonably foreseeable or ePrint Direct or its agents had been advised of the possibility of the Licensee or End Users incurring such losses. For the avoidance of doubt, Clauses 7(e)(ii) to 7(e)(xii) apply whether such losses are direct, indirect, consequential or otherwise.
f)Subject to the rest of this Clause 7 and the exclusions and limits set out in the rest of this License, the total Liability of ePrint Direct to the Licensee and its End Users arising out of or in connection with the total claims made by them in respect of loss or damage suffered by them in relation to the Licensed Materials shall be limited to the total sums paid or payable by the Licensee to ePrint Direct or the authorized Reseller from whom it obtained a copy of the Licensed Software (as the case may be) for the fee representing the Licensed Program license element.
g)The limitation of Liability under Clause 7(f) has effect in relation both to any Liability expressly provided for under this License and to any Liability arising by reason of the invalidity or unenforceability of any term of this License.
h)In this Clause 7:
i)"Breach of Duty" means the breach of any (A) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (B) common law duty to take reasonable care of exercise reasonable skill (but not any stricter duty); and
ii)"Liability" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this License, including, without limitation, liability expressly provided for under this License or arising by reason of the invalidity or unenforceability of any term of this License (and for the purposes of this definition, all references to "this License" shall be deemed to include any collateral contract).

8. Software Maintenance and Support.

a)This license does not cover support and maintenance. If the licensee would like to receive support and maintenance services in respect of the Licensed Materials, it shall enter into an appropriate agreement with ePrint Direct or a Reseller.

9. Term, Default and Termination.

a)This License is effective from the date of its execution until terminated by either party as provided below. This License will terminate automatically upon written notice being given by ePrint Direct if the Licensee gives notice to any of its creditors that it has suspended or is about to suspend payment or it shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts, or an order is made or a resolution is passed for the winding-up of the Licensee or an order is made for the appointment of an administrator to manage the affairs, business and property of the Licensee or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the Licensee's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the court to make a winding-up or bankruptcy order or the Licensee takes or suffers any similar or analogous action in consequence of debt. Further, in the event either party defaults in any material obligation in this License, the other party shall give thirty (30) days written notice of such default, and, if the party in default has not cured the default within thirty (30) days of notice of default, the other party shall have the right to terminate this License forthwith and render the Licensed Materials unusable.
b)Upon termination of this License, regardless of the cause of termination, the right to use the Licensed Materials is immediately revoked. Within fourteen (14) days after the termination of this License, for whatever reason, the Licensee shall return to ePrint Direct all copies in whole or in part, of the Licensed Materials in the Licensee's possession or under the supervision or control of the Licensee, including all copies. In the alternative, upon the request of ePrint Direct, the Licensee shall permanently destroy and erase all such copies of the Licensed Materials and certify in writing that they have been destroyed. In the event of termination as a result of the Licensee's failure to comply with any of its obligations under this License, the Licensee shall continue to be obliged to make any payments due as of the date of termination. Termination of the License shall be in addition to, and not in lieu of, any other rights and remedies available to ePrint Direct.

10. Infringement Indemnity.

a)ePrint Direct undertakes at its own expense to defend the Licensee or, at its option, settle any claim or action brought against the Licensee alleging that the use of the Licensed Software (or any part thereof) in accordance with the terms of this License infringes the UK Intellectual Property Rights of a third party ("Infringement Claim") and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Licensee as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, this Clause 10 (a) shall not apply where the Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Licensed Software or any Modification (or any part thereof) by or on behalf of the Licensee other than in accordance with the terms of this License or use of a non-current release of the Licensed Software or where the Infringement Claim arises due to the use of the Licensed Materials in combination with any Third Party Software or hardware.
b)Clause 10 (a) is conditional on:
i)the Licensee notifying ePrint Direct in writing and providing full details, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
ii)the Licensee not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of ePrint Direct; and
iii)ePrint Direct having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Licensee giving ePrint Direct all reasonable assistance in connection with those negotiations and such litigation at ePrint Direct's request and expense.
c)If any Infringement Claim is made, or in ePrint Direct's reasonable opinion is likely to be made, against the Licensee, ePrint Direct may at its sole option and expense:
i)procure for the Licensee the right to continue using the Licensed Software (or any part thereof) in accordance with the terms of this License; or
ii)modify the Licensed Software so that it ceases to be infringing; or
iii)replace the Licensed Software with non-infringing software; or
iv)terminate this License immediately by notice in writing to the Licensee and refund any of the license fee paid by the Licensee as at the date of termination (less a reasonable sum in respect of the Licensee's use of the Licensed Software to the date of termination) on return of the Licensed Software and all copies thereof, provided that if ePrint Direct modifies or replaces the Licensed Software, the modified or replacement software must comply with the warranties contained in Clause 6.1 and the Licensee shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this License been references to the date on which such modification or replacement was made.
d)The foregoing obligations state the entire liability of ePrint Direct and the exclusive remedy of the Licensee and ePrint Direct shall have no other liability or obligation with respect to any actual or alleged infringement of any Intellectual Property Rights under this License.

11. Miscellaneous.

a)Entire Agreement: Save as expressly provided herein, this License shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties hereto preceding the date of this License and in any way relating to the subject matter of this License and to the exclusion of any representations not expressly stated herein (whether made by a party to this License or not) save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter, or any other representations that it would be unreasonable in law to exclude. Each of the parties acknowledge that it has not entered into this License based on any representation that is not expressly incorporated into this Agreement. This License constitutes the whole agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
b)This License may not be amended, modified or altered except by written instrument duly executed by both parties and expressed to be for the purpose of such amendment.
c)Notice(s):  Any notice or other communication required or authorized to be given under this License shall be in writing and may be served by personal delivery or by first-class pre-paid post or recorded delivery letter (if to someone in the same country) or by overnight courier (if to someone in a different country) or by facsimile addressed to such address or facsimile number of the other for last known to the sender. Any notice given by post shall be deemed to have been served four days after the same is posted and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine. In proving service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, handed in to the mail delivery organisation as a first-class pre-paid post or recorded delivery letter or despatched to an overnight courier or an answerback signal received.
d)Governing Law and Jurisdiction: This License shall be governed by and construed in accordance with English law and the Licensee and End Users hereby submit to the jurisdiction of the English courts. The parties irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter brought by the Licensee or End User in relation to this License. Nothing in this Clause 11 (d) shall limit the right of ePrint Direct to take proceedings against the Licensee and the End Users in any other court of competent jurisdiction. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language.
e)Limitation on Actions: No action, regardless of form, arising out of this License may be brought by either party more than two years after the aggrieved party learns or should have learned of the cause of action.
f)Severability: If any Clause in this License shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or part of any Clause, all of which shall remain in full force and effect.
g)Assignment: Except as expressly permitted herein the Licensee may not assign or sub-license, without the prior written consent of ePrint Direct, its rights, duties, or obligations under this License.
h)Waiver: No failure or delay by either party in exercising any right under this License shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that party's rights under this License. (i)  Independent Contractor: Nothing in this License shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties and neither party has express or implied authority to act on behalf of, or make any representations whatsoever on behalf of, the other party.
i)Certification/Audit: On ePrint Direct's request, no more frequently than annually, the Licensee shall furnish ePrint Direct with a signed certification verifying that the Licensed Materials are being used pursuant to the terms of this License. The Licensee and End Users agree to grant ePrint Direct reasonable access to their sites and to their records and computer equipment, upon prior written notice during normal business hours to audit the use of the Licensed Materials and to verify that the Licensee and End Users are complying with the terms of this License.
j)If the Licensee is in breach of this License or has underpaid license fees to ePrint Direct or a Reseller for use of the Licensed Materials, the Licensee shall pay for such underpaid fees based on the then-current License fees at the time ePrint Direct becomes aware of the default and the Licensee shall indemnify and keep fully indemnified ePrint Direct against any and all losses, liabilities, damages, proceedings, claims, costs, charges and expenses suffered or incurred by ePrint Direct as a result.
k)Successors:  This License shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assignees of the parties hereto, but nothing in this section shall be construed as a consent to any assignment of this License by the Licensee except as provided hereinabove.
l)Third Parties: No term of this License is intended to confer a benefit on, or be enforceable by, any person who is not a party to this License.