END USER LICENCE AGREEMENT (“EULA”)


CAREFULLY READ THIS AGREEMENT WHICH CONSITUTES A LEGALLY BINDING AGREEMENT WITH ONAPP LIMITED OF THE COOPERAGE, OLD TRUMAN BREWERY, 91 BRICK LANE, LONDON E1 6QL (“OnApp”).  THIS AGREEMENT GOVERNS ALL USE OF AUTHORISED COPIES OF THE SOFTWARE TO WHICH IT APPLIES. BY INSTALLING AND/OR USING AN AUTHORISED COPY OF THE SOFTWARE LICENSED TO YOU AND/OR BY LEGITIMATELY ACQUIRING A LICENCE KEY TO USE AN AUTHORISED COPY OF THE SOFTWARE, AND/OR BY CHECKING AN APPLICABLE “I AGREE” BOX (IF ANY) FOR THE USE OF AN AUTHORISED COPY OF THE SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT.  IF YOU DO NOT AGREE ALL SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE THE SOFTWARE OR ACQUIRE A LICENCE KEY TO USE IT.  

This end user licence agreement (“EULA”) for use of software by an end user is entered into by and between the applicable entity referred to above and the person or entity that has downloaded the software to which this Agreement applies (“Software”) or that has acquired a licence key for use of it or that has checked the applicable “I Agree” box (if any), and is effective as of the date the Software is first installed (the “Effective Date”).The provisions of this EULA do not seek to amend the terms of any agreement you may have with any third party from whom you may have acquired the Software.



1.	LICENSE AND RESTRICTIONS

1.1	License Grants. The Software may only be used by an end user of it (“End User”) and not by any distributor, reseller, OEM, systems integrator or any other third party. Use of the Software is exclusively subject to the terms and conditions of this agreement (“EULA”). This EULA is granted to the End User by OnApp or its designated licensees/assignees/transferees (collectively “Licensor”).  The End User shall pay when due all amounts payable for the rights granted hereunder for which purpose time shall be of the essence.

1.2	Licensor hereby grants  to the End User, during the term and for the restricted scope of this EULA, a limited, non-exclusive, non-transferable non-sublicenseable right and license to: (i) install and use the object code version of the Software, subject to any applicable limitations/restrictions; (ii) use the documentation, if any, provided with the Software (“Documentation”); (iii) permit third party contractors performing services on behalf of the End User to use the Software and Documentation as set out in (i) and (ii) above, provided that such use must be solely for the benefit of the End User, and that the End User shall be responsible for all acts and omissions of such contractors in connection with their use of the Software.

1.3	End User acknowledges and agrees that as between it and Licensor, Licensor owns and controls all rights including copyright and any other Intellectual Property Rights in to and under the Software throughout the world and that the End User is not acquiring any such rights other than those specifically and expressly granted under this EULA. All rights not expressly licensed under this EULA are hereby strictly reserved. Use of the Software signifies End User’s irrevocable and unconditional acceptance of all of its terms.  Any End User not agreeing to all of the terms of this EULA is prohibited from using the Software.   End User’s right to continued use of the Software is dependent at all times on End User’s strict compliance with all the terms of this EULA.  In the event of End User’s failure to comply with the terms of this EULA, End User’s rights under this EULA and any right to receive support in respect of the Software may be suspended for the period of such non-compliance and/or permanently terminated at any time by Licensor (at the continuing election of Licensor to be exercised from time to time in Licensor’s sole discretion). 

1.4	EULA Key, Delivery and Acceptance.  The End User is deemed to have accepted the Software on download of it or receipt of an applicable EULA Key if it is provided subsequent to receipt of the Software.

1.5	Reservation of Rights; The End User agrees not to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software or any portion thereof to human-readable form, except and only to the minimum extent permitted by applicable law, (ii) [reserved] (iii) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted herein; (iv) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software or the rights granted under this EULA in whole or in part to any third party; (v) provide use of the Software to any third parties whether or not on a time-sharing services, software-as-a-service or “SaaS” offering, service bureau services or as part of an application services provider or other service offering; (vi) circumvent the limitations on use of the Software that are imposed or preserved by any EULA Key, (vii) alter or remove any marks and notices in the Software; or (viii) make available to any third party any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of the Licensor.  The Software may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source Software”), which Open Source Software may have applicable license terms.  Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the license terms and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to End User hereunder, but may contain additional rights).

1.6	Unless lawfully terminated sooner this EULA shall expire at the end of its specified duration subject to any applicable agreement for its extension or renewal. Notwithstanding any other provision of this EULA or the terms of any agreement you may have with any third party from whom you may have acquired the Software, OnApp shall have the right to suspend your use of the Software in the event that it becomes aware of any actual or threatened breach of any terms or conditions applicable to your use of the Software. 	 


2.	LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES

2.1	Limited Warranty of Conformity.  Licensor warrants that for the first thirty days of End User’s use of the Software, it will conform in all material respects substantially in accordance with its written published specification as then currently approved by Licensor (“Specifications”). In the event of a breach of the foregoing warranty, Licensor’s sole obligation, and End User’s exclusive remedy, shall be for Licensor to use commercially reasonable endeavours to correct such non-conformity as part of any generally available future modification of the Software.  The warranty set forth in this Section 2.1 does not apply if the Software or any portion thereof: (a) has been altered, except by or on behalf of Licensor; (b) has been used in a manner that is improper, unauthorised or unenvisaged, or (c) has been re-installed, repaired, or maintained other than by Licensor or has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident.  

2.2	No Liability for Hardware or End User Content.  Licensor has no responsibility for or in connection with the hardware used to operate the Software (“Hardware”) and does not hold itself out as having any liability in connection with the Hardware and hereby disclaims any liability arising out of or in connection with the Hardware or any operating system used with such Hardware. If End User uses the Software to process information (“Content”),  Licensor has no responsibility for or in connection with the Content and does not hold itself out as having any liability in connection with the Content and hereby disclaims any liability arising out of or in connection with the Content.	  

2.3	Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 2, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND LICENSOR MAKES NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND WITH RESPECT TO THE USE OF IT AND DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF IT WILL BE UNINTERRUPTED.    END USER AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED IN CONNECTION WITH ITS USE OF THE SOFTWARE. 


3.	LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES

3.1	Excluded Damages. SUBJECT TO SECTION 3.3 BELOW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS LICENCE, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

3.2	Damages Cap.  SUBJECT TO SECTION 3.3 BELOW, IN NO EVENT SHALL LICENSOR’S TOTAL, CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS LICENCE EXCEED THE AMOUNT RECEIVED BY LICENSOR FOR THE LICENCE GRANTED HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. 

3.3	NOTHING IN THIS AGREEMENT SHALL RESTRICT  OR EXCLUDE LICENSOR’S LIABILITY FOR DEATH OR  PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD INCLUDING FRAUDULENT MISREPRESENTATION.


4	GENERAL 

4.1	Anti-Corruption. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable anti-corruption laws, including without limitation, the U.K. Bribery Act.

4.2	Assignment.  End User shall not assign this Agreement, in whole or in part, without the prior written consent of Licensor. Any assignment in violation of this Section 12.2 shall be void, ab initio, and of no effect.  Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.

4.3	Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
4.4	Governing Law and Jurisdiction.  This EULA and any non-contractual obligation arising out of or in connection with it, is governed exclusively by the laws of England whose courts shall have exclusive jurisdiction over any and all disputes arising out  of or in connection with it. This EULA shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods.  A breach or threatened breach of this EULA by End User may cause irreparable harm for which damages at law may not provide adequate relief, and therefore the Licensor shall be entitled to seek injunctive relief in respect of it. 

4.5	Non-waiver.  Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this EULA or to exercise any rights or remedies under this EULA will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.

4.6	Relationship of the Parties. The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency or fiduciary relationship between the parties.  Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.

4.7	Severability. If any provision of this EULA is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.

4.8	Suggestions and Ideas.  Licensor will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions or feedback (collectively, “Feedback”) provided to it by or on behalf of End User with respect to the Software.  The foregoing grant of rights is made without any duty to account for the use of such Feedback. 

4.9	Export Controls. You acknowledge that the Software may be subject to national and international controls including laws and regulations on its export to and use in certain territories and agree to abide by all such controls, laws and regulations. 

4.10	Entire Agreement; Amendment.  This EULA constitutes the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter.    For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if End User issues any purchase orders or similar documents in connection with its use of Software, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By accepting this EULA, whether prior to or following receipt of End User’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this EULA, and the grant of this EULA shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this EULA, nor (iii) an agreement to amend this EULA. This EULA shall not be modified except by a subsequently dated, written amendment that expressly amends this EULA and which is signed on behalf of Licensor and End User by their duly authorized representatives. 


