PLEASE BE ADVISED THAT THE SOFTWARE THAT IS THE SUBJECT OF THIS AGREEMENT IS PROTECTED UNDER U.S. AND U.K. PATENT LAWS AND HAS BEEN ASSIGNED U.S. PATENT NO. 6,430,609 AND U.K. PATENT NUMBER GB2384595.
This Software License Agreement (“Agreement”) is an agreement among EASA Software, Ltd., EASA, Inc., (collectively “EASA”) and you (the “Licensee”) (collectively the “parties”).
The following license terms govern your use of the Software unless you have a separate signed agreement with EASA.
In this Agreement the following words and expressions shall have the following meanings:
“Computer System” the computer system(s) under the control of the Licensee and upon which the Software is first installed;
“Fees” the fees in respect of the License; Maintenance or Services (as applicable) and set out at Schedule 1 (and Schedule 2, if applicable);
“Fixed Term License” the License granted to the Licensee for the fixed License Term set out at Schedule 1;
“License” the license granted to the Licensee under clause 1;
“License Term” either a Perpetual License or a Fixed Term License as indicated at Schedule 1;
“Maintenance” the maintenance to be provided by or on behalf of EASA as set out at clause 8;
“Maintenance Term” the term for which EASA shall provide Maintenance to the Licensee as set out at Schedule 1;
“Perpetual License” the License granted to the Licensee (in perpetuity) to use the Software;
“Services” the services set out at Schedule 1 (and Schedule 2, if applicable) which EASA agrees to provide to the Licensee from time to time; and
“Software” the computer software set out at Schedule 1.
1. GRANT OF LICENSE
1.1 EASA, Inc. grants to the Licensee a non-exclusive, non-transferable, revocable license to use, if such use is in North America or South America, the Software for the Term subject to the terms and conditions of this Agreement.
1.2 EASA Software, Ltd. grants to the Licensee a non-exclusive, non-transferable, revocable license to use, if such use is in a location outside of North America or South America, the Software for the Term subject to the terms and conditions of this Agreement.
2.1 The Licensee acknowledges that EASA or its licensors are the owners of all of the intellectual property rights in the Software.
2.2 The Licensee acknowledges and agrees that no title to or ownership of the Software is transferred to Licensee by virtue of this Agreement or otherwise.
3. PAYMENT AND EVALUATION
3.1 In consideration for the grant of the License, the Licensee shall pay the Licensee Fees to EASA within thirty (30) days from the date of EASA's invoice.
3.2 The Licensee shall be responsible for all sales, use, value added or other taxes, federal, state or otherwise (excluding any income taxes imposed on EASA), however designated, which are levied or imposed by reason of the transaction contemplated by this Agreement including, without limitation, and such taxes relating to the Services.
3.3 In the event that any amount is overdue for payment under this Agreement, EASA reserves the right to charge interest to the Licensee (both before and after any judgment) at the rate of 3% over Barclays Bank plc's base rate from time to time, such interest to accrue on a daily basis.
3.4 In the event that EASA has permitted the Licensee to evaluate the Software prior to purchasing a license, the terms of this Agreement shall apply to the evaluation license and such evaluation license may be subject to a fee. The consideration for the grant of the evaluation licensee is Licensee's promise to consider purchasing a license for the Software.
4. TERM OF LICENSE
4.1 Unless terminated pursuant to clause 4.2, or renewed or extended by the mutual consent of the parties, the License is effective until the expiration of the Term.
4.2 EASA may terminate this Agreement (including the License) forthwith without notice if the Licensee:
4.2.1 fails to comply with any of the terms and conditions of this Agreement; or
4.2.2 being a company, suffers any distress or execution or a resolution or order to wind up the company is passed or made (otherwise than for bona fide solvent reconstruction or amalgamation) or has a receiver, administrative receiver or administrator appointed or an administration order is made in respect of the company or commits an act of bankruptcy or enters into an arrangement or composition with its creditors; or
4.2.3 being a partnership, any of the partners is declared bankrupt; or
4.2.4 has any distraint, execution or other process levied or enforced on any of its property or ceases or threatens to cease to trade or the equivalent of any of the above occurs to the Licensee under the jurisdiction to which the Licensee is subject.
4.3 Upon termination of this Agreement for any reason, the Licensee shall uninstall and/or remove all copies of the Software stored in or on the Computer System or otherwise destroy all copies of the Software in the possession of the Licensee and an officer of the Licensee shall confirm in writing that the provisions of this clause 4.3 have been complied with.
4.4 Termination of this Agreement shall not operate so as to affect such of the provisions of this Agreement as are expressed or implied to operate or have effect after termination of this Agreement and shall be without prejudice to any obligations, rights or liabilities which shall have accrued under this Agreement and be owing prior to termination.
4.5 All provisions of this Agreement relating to EASA's proprietary rights shall survive termination or expiry of this Agreement.
5. PERMITTED USE OF THE SOFTWARE
5.1 This License permits the Licensee to:
5.1.1 install the Software only on the Computer System; 5.1.2 allow its employees, or in the case of an academic license, its students to access the Software over the Licensee's network; and 5.1.3 allow third parties to access the software provided always that: a. the licensee gives prior written notification to EASA of the identity and affiliation of the third parties, and b. the third parties are located at one of the Licensee's sites. 5.2 The Licensee undertakes:
5.2.1 only to use the Software for the purposes of the Licensee's own internal business; and
5.2.2 to supervise and control the use of the Software in accordance with the terms of this Agreement; and
5.2.3 not to remove, or to allow to be removed, any copyright trade secret or other proprietary protection or notices in or on the Software, or any part thereof; and
5.2.4 not modify, alter or in any way interfere with the Software or merge the Software with other data, programs or systems save to the extent permitted by law. Without prejudice to any other remedy of EASA if the Licensee (in breach of this clause) does modify, alter, interfere with or merge the Software, no such modification, alteration, interference or merger however extensive shall derogate from the obligations of and restrictions on the Licensee under this Agreement which shall thenceforth apply to the Software as so modified, amended, altered, interfered with or merged; and
5.2.5 not to sell, lease, license, sub-license or otherwise deal with the Software or any part or parts save in accordance with the terms of this Agreement or have any software or other program written or developed for itself based on any confidential information supplied to it by EASA; and
5.2.6 to ensure that its employees, agents and other parties who shall use the Software are notified of this Agreement and the terms hereof prior to such employee, agent or party using the same; and
5.2.7 not to provide or otherwise make available the Software in whole or in part in any form to any third party without prior written consent from EASA.
5.3 The Software shall not be copied to, or used on, any other computers or network of computers other than the Computer System. In the event that the Licensee desires to transfer the Software to another computer or network of computers, Licensee shall notify EASA, Inc. if such computer or network of computers is located in North America or South America, or EASA Software, Ltd. if such computer or network of computers is located outside of North America or South America, of such desired change. Licensee shall identify such other computer or network of computers and EASA, respectively, shall not unreasonably withhold agreement to such change subject to the payment of a fee for such change provided that the Licensee confirms in writing that all Software on the thereto then existing Computer System has been disabled and removed.
5.4 The Licensee shall not install the Software on any computer located outside of the Licensee's site (the premises where the Software is first installed on the Computer System) without first obtaining the express written approval of EASA
5.5 No use of the Software other than that specified herein is permitted by the Licensee without the prior written approval of EASA, which approval may be subject to an additional charge.
5.6 The Licensee shall be permitted to make one archival copy of the Software for backup purposes only.
5.7 Information necessary to achieve the interoperability of the Software with other software programs used by the Licensee is available from EASA. Such information shall only be used by the Licensee to achieve such interoperability and for no other purpose. For the purposes of this clause “interoperability” has the meaning within Section 50B of the Copyright Designs and Patents Act 1988.
5.8 The Licensee warrants that it has procured any and all appropriate licenses for commercial software which may be used in conjunction with the Software.
6. DELIVERY AND INSTALLATION
6.1 EASA shall deliver the Software in object code only to Licensee. Unless otherwise agreed in writing between the parties, the Licensee shall be responsible for installing the Software on the Computer System. Installation instructions shall be provided by EASA with the Software. In the event that the Licensee requests reasonable advice from EASA in connection with the installation of the Software on the Computer System, EASA shall provide reasonable advice, at its option, by telephone, fax, e-mail, or by some other means of communication, free of charge to the Licensee.
7.1 The functional specifications of the Software are detailed in EASA's user documentation and relate to performance when used on a supported computer platform. When used in accordance with the user documentation, EASA warrants that the Software will for the period of 90 days from the date of commencement of this license conform to the corresponding user documentation current on the date of dispatch of the Software by EASA to Licensee or the date of download of the Software by the Licensee. EASA's sole liability under this warranty and the Licensee's only remedy shall be limited at EASA's option to either a replacement of the Software or a refund to the Licensee of the monies paid by the Licensee to EASA hereunder.
EXCEPT AS PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY STATUE, COMMON LAW OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED.
8.1 For the purposes of this Agreement, Maintenance means providing the Licensee with: (i) corrections to the Software, including revised documentation if appropriate; and (ii) any Updates which are released by EASA during the term of this Agreement including revised documentation if appropriate; and (iii) technical support in the form of telephone and written (including electronic) advice to the Contact concerning the use of the Software.
8.2 Subject to the payment by the Licensee of the Maintenance Fees, EASA shall provide Maintenance for the Maintenance Term provided that the Licensee is not in breach of the terms of this Agreement and that the person requesting the Maintenance has been trained by EASA for the appropriate capabilities of the Software or has completed the training course provided electronically with the Software.
8.3 If the Licensee is granted a Fixed Term License, the Maintenance Fees are included in the Fixed Term Licensee Fees.
8.4 If the Licensee is granted a Perpetual License:
8.4.1 the Maintenance Fees for the first year of Maintenance are included in the Perpetual Licence Fees; and
8.4.2 after the first year of Maintenance, Maintenance Fees will be paid annually by the Licensee. Annual Maintenance Fees are set at 20% of the then current Perpetual Software License Fees. The Licensee will be invoiced for Annual Maintenance Fees 30 days prior to the anniversary of the Agreement, to fall due on the anniversary of the Agreement; and
8.4.3 either party may cancel the Maintenance upon 3 months' written notice to the other party, such notice to take effect on any anniversary of this Agreement. If the Licensee terminates Maintenance and then elects to reinstate Maintenance, the Licensee will be required to make payment of 50% of the Maintenance Fees that would have been due in the period between termination and reinstatement of the Maintenance; and
8.4.4 provided always that the Licensee is not in breach of the terms of this Agreement, termination of the Maintenance by either party shall not terminate the Perpetual License.
8.5 EASA's maintenance obligations under this Agreement shall be limited to the provision of Maintenance contained in this Paragraph 8. If the Licensee requires additional maintenance services the parties may agree in writing to expand the provisions of Maintenance upon the terms of this Agreement and at EASA's then prevailing rates.
8.6 Maintenance shall not include support or assistance with any matter related to:
8.6.1 the improper use operation or neglect of the Software; or 8.6.2 the modification or alteration of or interference with the Software or its merger (in whole or in part) with any other software; or
8.6.3 the use of the Software on equipment other than the Computer System; or
8.6.4 the failure by the Licensee to implement recommendations in respect of or solutions to faults previously advised by EASA; or
8.6.5 a repair, adjustment, alteration or modification of the Software by a third party save with the prior written authority of EASA; or
8.6.6 the use of the Software for a purpose for which it was not designed; or
8.6.7 questions or problems relating to any software other than the Software.
8.7 “Updates” means a revised version of the Software which revised version comprises collectively one or more software components and which incorporates minor modifications and extensions to the performance.
9. LIMITATION OF LIABILITY
9.1 NOTHING IN THIS AGREEMENT SHALL LIMIT OR PURPORT TO LIMIT THE LIABILITY OF EASA FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR FRAUD.
9.2 THE AGGREGATE LIABILITY OF EASA RESULTING IN DIRECT LOSS OR DAMAGE SHALL NOT EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT AS FOLLOWS:
9.2.1 IF THE DIRECT LOSS OR DAMAGE IS IN RESPECT OF THE SOFTWARE SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT PAID IN RESPECT OF THE SOFTWARE LICENSE FEES; OR 9.2.2 IF THE DIRECT LOSS OR DAMAGE IS IN RESPECT OF EASA'S PERFORMANCE OR NON-PERFORMANCE OF THE MAINTENANCE SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT PAID IN RESPECT OF THE MAINTENANCE FEES IN THE YEAR OF ANY CLAIM; OR
9.2.3 IF THE DIRECT LOSS OR DAMAGE ARISING OUT OF EASA'S PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES SUCH LIABILITY SHALL NOT EXCEED THE AMOUNT PAID IN RESPECT OF THE SERVICES GIVING RISE TO THE CLAIM.
9.3 SUBJECT TO CLAUSE 9.1 EASA SHALL NOT BE LIABLE TO THE LICENSEE FOR ANY OF THE FOLLOWING TYPES OF LOSSES (WHETHER THOSE LOSSES ARISE DIRECTLY IN THE NORMAL COURSE OF BUSINESS OR OTHERWISE):
9.3.1 LOSS OF PROFIT OR ANTICIPATED SAVINGS; LOSS OF CONTRACTS; LOSS OF GOODWILL AND/OR BUSINESS OPPORTUNITY; LOSS OF DATA; OR
9.3.2 ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED EVEN IF EASA HAS BEEN ADVISED OF THEIR POSSIBILITY.
9.4 The prices charged by EASA have been set on the basis of the exclusions and restrictions of liability in this clause 9 and would be higher without those provisions. In the circumstances, the Licensee agrees those provisions are reasonable and will accept risk and/or insure accordingly.
9.5 The Parties expressly agree that should any limitation or provision contained in this clause 9 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if either party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.
9.6 For the purposes of this clause 9 'Liability' means liability in or for breach of contract, negligence (as defined in Section 1(1) of the Unfair Contract Terms Act 1977), misrepresentation, tortious claim, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or enforceability of any of the terms of this Agreement, and 'liable' shall be construed accordingly.
9.7 The provisions of this clause 9 shall survive the termination of this Agreement for any reason.
9.8 EASA shall be not liable for failure to perform its obligations under this Agreement if such failure results from any force majeure event such as, but not limited to, Act of God, refusal of licence or other government act, terrorism, war, fire, flood, explosion, strikes, lockout, industrial action, accident, lightning damage, electromagnetic interference, radio interference, difficulty in obtaining materials or any cause beyond its reasonable control.
10.1 In the event that EASA provides Services to the Licensee, the provisions of this clause 10 shall apply.
10.2 While performing the Services, the Licensee shall:
10.2.1 ensure that EASA staff have reasonable access to all facilities and staff so as to enable EASA to perform its obligations under this Agreement; and 10.2.2 provide adequate working and storing space and other such facilities as EASA may require to perform the Services. EASA undertakes to comply with all security and health and safety policies brought to its attention while on the Licensee's premises. 10.3 EASA shall be permitted to invoice the Licensee for the Services at the end of the week in which the Services have been performed (unless specified differently in Schedule 2) and the Licensee shall pay such invoice within 30 days of the date of the invoice.
10.4 The Services Fees are exclusive of expenses including, without limitation, travel, accommodation and subsistence, which will be charged to the Licensee.
10.5 The Licensee warrants that it has the right to provide the materials (if any) it provides to EASA so as to enable EASA to perform its obligations in respect of the Services.
10.6 EASA warrants that it will carry out the Services with all due care and skill.
11. CONFIDENTIALITY AND PUBLICATIONS
11.1 Each party shall keep confidential any confidential information disclosed to it by the other. Confidential information includes, without limitation, information which is marked or expressed as being confidential, the content of this Agreement, and any information which could reasonably be deemed to be confidential, from its nature, content or the circumstances in which it is provided and the Software. Neither party shall disclose confidential information to anyone else except to its employees, agents and sub-contractors who need the information to effect proper performance of this Agreement and/or to its professional advisers. Each party shall be responsible for ensuring that any person to whom information is disclosed by them complies with the terms of this clause 11.
11.2 Clause 11.1 shall not apply to any information that is generally available to the public, unless this availability results from a breach of this Agreement, to information the receiving party already possesses or which it obtains independently in circumstances in which the receiving party is free to disclose it to others and/or to information that is required to be disclosed for legal reasons.
11.3 This clause 11 has continuing effect after termination of this Agreement.
11.4 Licensee shall not publish any press releases or promotional material or disseminate any information relating to the Software or its performance without obtaining the prior written consent of EASA. Any press releases or promotional material shall specify by name each relevant computer code. Publication of results dependent on or arising from the use of the Software shall include acknowledgement of the Software, specifying by name each relevant computer code. The Licensee shall use reasonable efforts to send a copy of each such publication to EASA. Without express written consent from Licensee, use of Licensee's name by Licensor for publicity purposes shall be limited to the inclusion of Licensee's corporate logo on Licensor's web-site.
11.5 The Licensee agrees that EASA's intellectual property rights and confidential information is valuable and that damages may not be an adequate remedy for any breach by the Licensee of this Agreement. The Licensee agrees that EASA will be entitled without proof of special damage to the remedies of an injunction and other equitable relief for any actual or threatened breach by the Licensee of this Agreement.
12. ENTIRE AGREEMENT
12.1 This Agreement supersedes any and all prior or contemporaneous negotiations, understandings or agreements between the parties, written or oral, with respect to this Agreement. In the instance where the terms of this Agreement conflict with a prior written agreement, including but not limited to, the Licensee's purchase order, the terms of this Agreement shall prevail. No modification to this Agreement shall have any effect unless made in writing and signed by an authorized representative of the Licensee and by an authorized representative of EASA.
12.2 Any purchase order sent by the Licensee to EASA shall be used for administrative purposes only and this Agreement shall take precedence over any and all purchase order terms and conditions.
The Licensee shall not assign or transfer any rights, duties or obligations under this Agreement without the prior written approval of EASA.
14. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software is provided to the Government only with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to the restrictions set forth in FAR Sections 52-227-14 and 52-227-19 or DFARS Section 52.227-7013(C)(1)(ii), as applicable. The Licensor is EASA, Inc., 40 North Avenue, Burlington, MA 01803. 15. NOTICES
Any notice or other communication required or permitted under this Agreement shall be in writing addressed to the address stated in this Agreement and shall be deemed to have been duly given, if delivered personally, upon delivery; or if properly addressed and posted by recorded delivery mail, three business days after posting.
16. APPLICABLE LAW
The parties agree that this Agreement shall be governed by and determined in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
17.1 Only the Parties and their successors and permitted assignees shall have a right to enforce any provision of this Agreement and no other person shall have any rights to enforce a term of this Agreement which confers a benefit on that person.
18. EXPORT REGULATIONS
All Software delivered under this Agreement is subject to US export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledges that Licensee has the responsibility to obtain such licenses to export, re-export, or import as may be required.
The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of The Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.