ANALYZER END USER SOFTWARE LICENCE AND MAINTENANCE AGREEMENT

This Agreement sets out the terms and conditions under which T C Analyzer Limited (company number 05753178), whose registered office is at Adam House, 71 Bell Street, Henley on Thames, Oxfordshire, RG9 2BD (“TCA”) will license to you (the “Licensee”) and maintain the Licensed Material.  Please read this Agreement carefully as  continuing with your purchase you are deemed to have accepted the following terms and conditions.  

1.         DEFINITIONS

In this Agreement, the following terms have the following meanings:

“Affiliate” means, in relation to a party, a holding company or subsidiary of that party, or a subsidiary of such a holding company (where “subsidiary” and “holding company” have the meanings given to them in s736 Companies Act 1985).

“Agreement” means this Hosted Licence and Maintenance Agreement.

“AMC” means the annual maintenance charge which, in respect of the year starting on the Date of Delivery, shall be 20% of the license fee (exclusive of VAT) and, in respect of subsequent years, shall be as notified to the Licensee from time to time in accordance with Clause 7.3.

“Change of Control” means, in relation to a party, a third party acquiring control (where “control” has the meaning given to it in s840 Income and Corporation Taxes Act 1988) of the party, save where the third party was, at the date of this Agreement, an Affiliate of the party;

“Confidential Information” means: (i) this Agreement, (ii) its provisions, (iii) the Licensed Materials and all information, data, specifications and documentation relating to the Software or its use or operation, (iv) all information concerning the business, customers, trade secrets, processes, or methods of or used by TCA or any of its Affiliates in carrying on business insofar as such information is obtained from TCA pursuant to or in connection with this Agreement, and (v) any other information which is confidential to TCA or an Affiliate of TCA.

“Date of Delivery” means the date of dispatch by or on behalf of TCA of Licensed Materials to the Licensee sent in accordance with Clause 2.1.

“Insolvency Event” means, in relation to a party, (i) the issue of a winding-up petition, (ii) the convening of a meeting for the purpose of considering the passing of a resolution for its winding-up (save for the purpose of a solvent amalgamation or reconstruction where the resulting entity is to assume all of its obligations under this Agreement), (iii) the making of an application to the court for an administration order or the giving of  a notice of intention to appoint an administrator by that party or its directors, (iv) a provisional liquidator, liquidator, administrative receiver, administrator, trustee or other similar officer taking possession of or being appointed over or an encumbrancer taking possession of the whole or substantially the whole of its property, (v) a receiver being appointed over any part of its property; (vi) its entering into a company voluntary arrangement (within the meaning of Part I Insolvency Act 1986) or otherwise entering into a compromise with the majority by value of its unsecured creditors; (vii) the filing of documents specified in Schedule A1 Insolvency Act 1986 with the court with a view to obtaining a moratorium pending its making proposals for a company voluntary arrangement; (viii) its being unable to pay its debts within the meaning of s123(1) Insolvency Act 1986 or being unable to pay its debts as they fall due; or (ix) the occurrence of any event in any other applicable jurisdiction analogous to any of the events referred to in paragraphs (i) to (viii) above.

“Licence”/”License” means the hosted licence/license of the Licensed Material under this Agreement.

“Licence Fee/Hosted service fee” means the annual or monthly fee in respect of the licence of the Software for the Analyzer Hosted Service and AMC (exclusive of VAT). All fees are payable in advance for the duration of this agreement.

“Licensed Material” means the Software and Supporting Documentation.

“Software” means the object code version of the software specified in the Schedule hereto and any replacements, modifications, or additions thereto released by TCA and supplied to the Licensee hereunder (together with any part thereof).

“Upgrades” means maintenance releases, maintenance upgrades, error corrections,

modifications, product enhancements or additional functionality to existing Software.

“Supporting Documentation” means any supporting documentation supplied by or on behalf of TCA from time to time in connection with Software.

2.         LICENCE

2.1        Following signature of this Agreement, TCA shall deliver to the Licensee access to the Licensed Material.

2.2        Subject to the terms of this Agreement, TCA hereby grants to the Licensee for a period of 3 years from the Date of Delivery a non-exclusive, non-transferable, worldwide right to use Licensed Material.

2.3        The Licensee acknowledges and accepts that (i) satisfactory operation of Licensed Material is dependent upon the use of appropriate computer hardware meeting the minimum hardware specification(s) in the Schedule hereto, (ii) the Licensee will need to hold or obtain copies of and licences for the third party software program(s) and licence(s) specified in the Schedule hereto in order to lawfully use the Software, (iii) the Licensee shall have no intellectual property or other rights in the Licensed Material other than a right to use it in accordance with the terms and conditions of this Agreement, (iv) the Licence is conditional on the Licensee making payment in full of all monies due in relation to the supply of the Licensed Material;

3.         DURATION

3.1        This Agreement is effective from the date of signature (save that the Licence is effective from the Date of Delivery) and this Agreement (including the Licence) shall continue from the Date of Delivery unless terminated:

(1)  forthwith by TCA if the Licensee commits any material breach of any term of the Agreement (and in the event that the material breach is capable of remedy has failed to remedy that material breach within 30 days after the receipt of a request from TCA to do so);

(2)  on 14 days’ written notice by TCA if the Licensee has failed to make any payment due under this Agreement, and fails to remedy that failure to make payment during the 14 day notice period;

(3)  forthwith by TCA if an Insolvency Event occurs in relation to the Licensee. 

3.2        Within 7 days following the date of termination, the Licensee shall at the option of TCA return or destroy all copies of the Licensed Material and shall certify to TCA in writing that this has been done.

3.3        Termination, howsoever arising, will be without prejudice to the rights and duties of either party accrued prior to or having effect after termination.

3.4        The contract will automatically renew on a monthly or annual basis should it not be terminated in writing by the Licensee.

4.         USE OF LICENSED SOFTWARE

4.1        The Licensee may install the Software on a single computer.  If additional installations are needed, additional licences must be purchased.

4.2        The Licensed Materials may only be used by the Licensee’s officers, employees and authorised contractors. 

4.3        The Licensed Materials may only be used for the internal business purposes of the Licensee (the “Permitted Use”).

4.4        At TCA’s reasonable request an officer of the Licensee shall certify in writing to TCA the number of computers on which the Software is installed.

5.         LICENSEE’S OBLIGATIONS

The Licensee shall:

(1)  retain all copyright and other proprietary notices on the Licensed Material (together with any back up copy) at all times;

(2)  not alter, modify, adapt, merge, translate, engineer, reverse engineer, or de-compile the Licensed Material, except as permitted by applicable law;

(3)  not create derivative works based on all or any part of the Licensed Material;

(4)  not transfer, assign, sell, lend, rent, sub-licence, part with possession of, charge or loan the Licensed Material to any person, or to dispose of the Licensed Material except as contemplated by this Agreement;

(5)  immediately advise TCA of any third party infringement of TCA’s rights in relation to Licensed Material that become known to the Licensee;

(6)  follow all reasonable instructions given by TCA to the Licensee from time to time with regard to the use of Licensed Material;

(7)  comply with all application international and national laws that apply to the Software licensed hereunder (including export restrictions); and

(8)  ensure that each individual user of the Licensed Materials complies with the terms of this Agreement.

6.         MAINTENANCE, HOSTING AND TECHNICAL SUPPORT

6.1        Subject to the Licensee paying and continuing to pay the AMCs, TCA shall:

(1)  supply Upgrades to the Licensee as and when TCA considers desirable in its absolute discretion;

(2)  make technical support in respect of the Software available to the Licensee by telephone or email (at TCA’s discretion) between the hours of 09.30 and 16.30 Monday to Friday (save for public holidays in England).

6.2        If the Licensee fails to make any payment of the AMCs, and later wishes to recommence receipt of the Upgrades and maintenance and technical support services, then the Licensee shall pay to TCA both the AMCs and the Licence Fees then applicable.

6.3        The provision of maintenance and technical support by TCA does not imply any guarantee or representation that TCA or Licensee will secure results from the Licensed Material that the Licensee is seeking or that TCA will be successful in correcting every malfunction.

6.4        TCA’s maintenance and technical support service does not cover any malfunction or error caused by wilful or negligent acts or omissions by the Licensee or any third party and is conditional upon the Licensee: (i) providing adequate information in respect of any error or malfunction in Licensed Material; (ii) not having changed, used for any purpose other than its intended purpose or otherwise incorrectly used or misused the Licensed Material; (iii) using the appropriate hardware, software, computer and operating system; (iv) having rectified any error or malfunction of the hardware upon which the Software is installed and the software with which the Software interacts.

6.5        TCA shall only be obliged to provide maintenance and technical support services in relation to (i) the current and (ii) the immediately preceding releases of the Licensed Materials from time to time, and shall have no such obligation in relation to any other release, save that TCA shall provide support for each new release of the Licensed Materials for at least 12 months following the date of delivery to the Licensee of the release.

6.6        Notwithstanding anything herein contained, maintenance and technical support (and the obligation to pay AMCs) may be terminated by the Licensee on 6 months’ notice in writing expiring on or after the third anniversary of the Date of Delivery.  Termination under this Clause shall not affect the continued validity of the remainder of this Agreement. 

6.7        If the Licensee orders and pays for TCA’s additional professional services these shall be provided in accordance with a separate agreement.

7.         WARRANTIES

7.1        TCA warrants that during the period of 30 days from the Date of Delivery (the “Warranty Period”) the Software will perform substantially in the manner specified in the Schedule hereto, and that it either owns all elements of the Software or has the right to sub-license such elements on the terms of this Agreement.  TCA also warrants that the media upon which the Licensed Material is provided shall be free from viruses.  However TCA does not warrant, represent or undertake that the Licensed Material will meet the Licensee’s requirements, that the operation of Software will be uninterrupted or error free, or that the Software will operate on any particular hardware or equipment.  Further, TCA does not give any warranty in relation to the operation of any Upgrade, or the Software following the application of any Upgrade.

7.2        Notwithstanding anything else contained in this Agreement, TCA’s liability for breach of Clause 7.1 shall be restricted to using all reasonable endeavours to rectify any inherent malfunction or error in the Software.

7.3        All warranties, terms or conditions (other than relating to the title to goods) which are not set out in this Agreement and would otherwise be implied or incorporated in this Agreement by statute, common law or otherwise, including, without limitation, implied warranties, terms or conditions of satisfactory quality or fitness for a particular purpose or conformance to description or sample, are hereby excluded.

8.         INDEMNITIES

8.1        TCA shall indemnify the Licensee against all damages (excluding loss of profit and indirect or consequential loss), reasonable costs, reasonable charges and reasonable expenses arising from or incurred by reason of any infringement or alleged infringement of copyright in consequence of the authorised use or possession of the Licensed Material under this Agreement, which has been awarded by a court of competent jurisdiction or as a result of a settlement approved in writing by TCA, subject to the Licensee:  (i) allowing TCA at TCA’s expense to conduct any negotiations or litigation and/or settle any claim; (ii) making no admission without TCA’s prior written consent; (iii) giving all reasonable assistance to TCA in any proceedings which TCA may decide to institute or defend; (iv) not instituting any proceedings in respect of any such matters without the prior written consent of TCA.

8.2        If at any time an allegation of infringement of any third party’s rights is made in respect of Licensed Material or if in TCA’s reasonable opinion such an allegation is likely to be made, TCA may at its sole discretion: (i) at its cost modify or replace the Software so as to avoid infringement; or (ii) obtain for the Licensee the right to continue using Licensed Material; or (iii) terminate this Agreement (including for the avoidance of doubt the Licence at Clause 2) forthwith.

8.3        The Licensee hereby indemnifies and shall indemnify TCA against all claims, damages, expenses and other losses resulting from breaches of this Agreement or any other of its acts or omissions, or the acts or omissions of its officers, employees, agents, subcontractors or Affiliates, or the acts or omissions of its Affiliates’ officers, employees, agents or subcontractors.

9.         LIABILITIES

9.1        The provisions of this Agreement set out the maximum liability of TCA under or in connection with this Agreement, and all TCA’s other liability is hereby excluded, except that nothing contained herein shall exclude or limit either party’s liability for death or personal injury caused by its negligence, for fraud or to the extent such liability may not be excluded or limited by law.

9.2        Without limiting the provisions of Clause 10.1, the maximum aggregate liability of TCA for all claims arising under or in connection with this Agreement including, without limitation, for breach of contract, negligence, and other tortious acts or omissions, shall not exceed an amount equal to the total fees (including AMCs and Licence Fees) paid under this Agreement by the Licensee for the Licensed Material in the twelve months preceding the date the claim is made.

9.3        TCA shall not be liable under or in connection with this Agreement (regardless of the claim or cause of action, including, without limitation, for breach of contract, negligence or other tortious act or omission) for any loss or damage to data or the corruption of any software run by the Licensee, or loss of revenue, profits, goodwill or arising from any interruption of business, or for special, incidental, indirect or consequential loss of any kind regardless of whether such loss or damage would arise in the ordinary course of events or otherwise, or is reasonably foreseeable or is otherwise in the contemplation of the parties.

9.4        The risk of loss and damage to Licensed Material shall rest with the Licensee from the Date of Delivery.  TCA must be informed immediately of any loss or damage to Licensed Material.

10.        FORCE MAJEURE

Neither party shall be liable for any delay or failure in performing any of its obligations hereunder if such delay or failure is caused by circumstances beyond the reasonable control of the party so delaying or failing to perform and such party shall be entitled to a reasonable extension of time for the performance of such obligations.

11.        CONFIDENTIALITY, AND PUBLICITY

11.1      The Licensee shall take all necessary steps to keep confidential, and shall procure that its Affiliates and its and their personnel, agents, contractors and representatives shall take all necessary steps to keep confidential all the Confidential Information.

11.2      Notwithstanding Clause 11.1, the Licensee shall be permitted to disclose this Agreement and its provisions to its professional advisers for the purposes of receiving professional advice.

11.3      The provisions of Clause 11.1 shall not apply to Confidential Information which:

(1) was lawfully known to the Licensee (without obligation to keep the same confidential) at the date of its disclosure;

(2) is after the date of disclosure lawfully acquired by the Licensee in good faith from an independent third party who is not subject to any obligation of confidentiality in respect of such Confidential Information;

(3)  was at the time of disclosure or has become available to the public, otherwise than by reason of the Licensee’s or any other person’s neglect or breach of the restrictions set out in this or any other agreement;

(4)  has been independently ascertained or created by the Licensee without access to any or all of the Confidential Information as demonstrated by its written records; or

(5)  is required by law, judicial action, governmental department or agency or other regulatory authority to be disclosed or which is required to be disclosed by the regulations of any exchange upon which the share capital of the Licensee is listed or dealt in or is to be listed or dealt in, but only to the extent and for the purpose of such a disclosure, in which event the Licensee shall take all reasonable steps to consult and take into account the reasonable requirements of TCA in relation to, and prior to, such disclosure.

11.4      TCA may disclose for the purposes of marketing and publicity that the Licensee is a client and has been supplied with the Licensed Materials, and may use the name and logo(s) of the Licensee for such purposes. 

12.        GENERAL

12.1      This Agreement sets forth the entire agreement between the parties with respect to the subject matter herein and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements, whether oral or written between the parties.  Any variations to these terms are only effective for the exact variations as agreed in writing and all other Clauses within this Agreement shall remain unaffected by any such variation agreement. 

12.2      The descriptive headings of this Agreement are intended for reference only and shall not affect the construction or interpretation of this Agreement. 

12.3      This Agreement is governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts.

12.4      The illegality, invalidity or unenforceability of any provision of this Agreement shall not effect the legality, validity or enforceability of any other provision.

12.5      This Agreement shall not be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.

12.6      All notices, requests or communications between the parties shall be in writing and delivered personally, sent by registered or certified mail, in the case of TCA to The Company Secretary at TCA’s then registered office address or, in the case of the Licensee, the Licensee’s registered address, or such other address as the parties may nominate by notice of at least 14 days in accordance with this Clause 12.6.  

12.7      No delay in exercising or non-exercise by either party of any of its rights under or in connection with this Agreement shall operate as a waiver or release of that right.  Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

12.8      Save as expressly provided, neither party shall assign, transfer, sub-contract, sub-licence or in any other manner make over to any third party the benefits or burdens of this Agreement without the prior written consent of the other, save that TCA shall be entitled without the consent of the Licensee to assign or transfer the benefits and burdens of this Agreement to (i) an Affiliate, (ii) any company with which it may merge, or (iii) any company to which it may transfer all or substantially all of its assets and undertakings. The Licensee shall at TCA’s request execute such deeds or other documents reasonably required by TCA to give effect to any assignment or transfer pursuant to this Clause 12.8.

SIGNATURE: ………………………

SIGNED BY: ………….……………

FOR AND ON BEHALF OF:

T C ANALYZER LIMITED

DATED: ……………….……………

SIGNATURE: ………………………

SIGNED BY: ……….………………

FOR AND ON BEHALF OF THE CLIENT

DATED: ……………………………