End User License agreement for MODAS Mobile

3tc Software Limited


1. Definitions
1.1 ‘the Applications’ means the MODAS Mobile software;
1.2 ‘the Application Documentation’ means the operating manuals, user instructions, technical literature and all other related materials in hard format supplied to the Licensee by 3tc;
1.3 ‘the Application Material’ means the Application, the Application Documentation and the Media;
1.4 ‘the Licence’ means this licence agreement;
1.5 ‘the Location’ means the location where the 3tc software is located at Office 8, The Coach House, Desford Hall, Leicester Lane, Desford, Leicestershire, LE9 9JJ, Tel: 01455 826400;
1.6 the ‘Media’ means the media on which the Application and the Application Documentation are recorded or printed as provided to the Licensee by 3tc.

2. Licence
2.1 3tc hereby grants to the Licensee a non-exclusive, non-transferable right and licence to use the Applications, subject to the terms and conditions hereinafter contained.
2.2 The Licensee may not use the Applications for time-sharing, rental, service bureau use, third party training purposes or for any nuclear, aviation, mass transit or medical application or any other inherently dangerous application.
2.3 This Licence does not include provision for service and support of the Licensed Software. The terms and conditions for such services are set forth in the applicable Software Support Agreement.
2.4 The Licensee may copy the Software into any machine readable form for backup purposes although no more than two such copies may be in his possession at any one time. The 3tc copyright notices, as they appear on the original, must be included on any copy.
2.5 The Licensee acknowledges that the 3tc Software is subject to the export laws and regulations of the United Kingdom.
2.6 The Licensee acknowledges that it shall only use the software for the purposes for which it was purchased and within the same geographical location.
2.7 The use of the Applications for further areas both geographical and operational is subject to prior negotiation with 3tc.
2.8 The Licensee shall not provide or otherwise make available the Application Materials or any part thereof to any person other than its own employees without the prior written consent of 3tc.
2.9 The Licensee is granted a non-exclusive license to use the Application Documentation in support of the licensed use of the Applications. No copies may be made of the Application Documentation without the prior written consent of 3tc.
2.10 Except as permitted by law, the Customer shall not alter, modify, adapt or translate the whole or any part of the Applications in any way whatsoever, nor permit the whole or any part of the Applications to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to any of such things.

3. Term and Termination
3.1 This Licence is effective from the day that the Licensee first uses the Applications and shall continue for one year unless earlier terminated by written agreement of the parties or as provided in sub-clause 3.3 hereof or sub-clause 6.2.2.
3.2 This Licence may continue, subject to the extension/renewal of a valid Software Support Agreement and payment of further licence fees
3.3 This licence may be terminated by 3tc if:-
3.3.1 the Licensee attempts to transfer possession of the Applications; or
3.3.2 The Licensee commits any material breach of this Licence and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a written request from 3tc so to do, to remedy such breach; or
3.3.3 The Licensee has previously given written notice to 3tc that it has permanently discontinued the use of the Application Materials; or
3.3.4 The Licensee is or becomes bankrupt or insolvent or makes any composition with its creditors or has a receiver or manager appointed of the whole or any part of its undertaking or assets or (otherwise as a solvent company for the purpose of and followed by an amalgamation or reconstruction whereunder its successor shall be bound by its obligations hereunder) commences to be wound up.
3.4 Upon termination, the Licensee agrees to remove any Licensed Software in whatever form they appear and (i) either return all copies thereof to 3tc or (ii) to destroy such copies, as directed by 3tc.

4. Warranty
4.1 The Applications are warranted for 30 days following Acceptance Date or Go-Live, whichever event occurs soonest, to function substantially in accordance with the Specification when properly used in accordance with the Application Documentation.
4.2 This warranty extends solely to the Licensee and, to the extent permitted by law, is in lieu of all other warranties, express or implied, conditions, terms undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
4.3 This warranty set forth above is subject to:
4.3.1 the Licensee complying with its obligations under this Agreement;
4.3.2 no alterations having been made to the Applications by any person other than an authorised 3tc agent or employee.
4.3.3 the Licensee having implemented new releases of the Applications (if any) offered to it by 3tc or Licensee’s vendor;
4.3.4 the Applications being used in accordance with the Application Documentation or other instructions provided by 3tc or by misuse or neglect; and
4.3.5 the Licensee having operated the Applications in recommended environmental conditions (if any such conditions have been so notified to the Licensee by an authorised 3tc agent or employee.
4.4 When notifying a defect or error, the Licensee shall (so far as is able) provide a documented example of such defect or error.
4.6 The Licensee acknowledges that the Applications has not been prepared to meet the Licensee’s individual requirements and that it is therefore the responsibility of the Licensee to ensure that the facilities and functions described in the Specification meet its requirements. 3tc shall not be liable for any failure of the Applications to provide any facility or function not specified in the Specification.

5. Limit of Liability
5.1 The total liability of 3tc for any claim or damage arising under this EULA, whether in contract, tort, by way of indemnification or under statute, shall be limited to (i) direct damages which shall not exceed the license fees paid hereunder or (ii) except in respect of injury to or death of any person (for which no limit applies) any loss of or damage to property or injury to or death of any person caused by any negligent act or omission or wilful misconduct of 3tc, for which indemnity coverage is provided by 3tc’s insurance carrier(s), the coverage limits of such insurance.
5.2 Save as provided for at 4.1 above, 3TC shall not be liable to the Licensee for indirect, consequential or special loss (including loss of profits, contracts, business or goodwill, loss of, damage to or corruption of data, or loss of availability) whether arising from breach of contract, breach of statutory duty, tort (including negligence) or otherwise.
5.3 The Licensee shall indemnify 3tc and keep 3tc fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act of omission or wilful misconduct of the Licensee, its employees, agents or sub-contractors.
5.4 The Licensee shall indemnify and hold 3tc harmless from and against all third party claims arising out of any acts or omissions of the Licensee, or its employees or representatives.

6. Intellectual Property Infringement
6.1 Subject to Clause 4.1, 3tc shall defend at its expense any claim brought against the Licensee alleging that the Application materials infringe copyright or patent rights of any third party in the Location country provided that:
6.1.1 3tc is given immediate written notice of and complete control of such claim; or
6.1.2 the Licensee does not prejudice 3tc’s defence of such claim; or
6.1.3 the Licensee gives 3tc all reasonable assistance with the claim; or
6.1.4 the claim does not arise either as a result of the use of the Applications in combination with any equipment or programs not supplied or approved by 3tc; or
6.1.5 the claim does not arise as a result of use of other than a current unaltered release of the Applications that 3tc provides or has offered to provide to the Licensee
6.2 In the defence or settlement of such claims, Asset shall have the option at its own expense to:
6.2.1 Obtain for the Licensee a licence to continue using the Application; or
6.2.2 Terminate the licence for the infringing Application and return amounts up to the fees paid by the Licensee (subject to a reasonable reduction for depreciation) for such Application; or
6.2.3 Replace or change all or any part of the Application in order to avoid any infringement.
6.3 The foregoing states the entire liability of 3tc to the Licensee in respect of the infringement of the intellectual property rights of any third party.

7. Confidentiality and Propriety Rights
7.1 The Licensee acknowledges that the Applications and associated documentation (the “Confidential Information”) constitute trade secrets and proprietary information of 3tc.
7.2 The Licensee agrees to treat as confidential and keep secret all Confidential Information, know-how, techniques, ideas, principles and concepts contained or embodied in the Application materials and the Specification and all information which may be conveyed by 3tc and/or the Reseller to the Licensee by training. In keeping confidential such Information, the Licensee shall use such a standard of care as it uses to keep confidential its own confidential information, being not less than a reasonable degree of care.
7.3 The Licensee understands and agrees that the information contained in the Applications is proprietary to 3tc and that the copyright and other intellectual property rights in the software applications and related documentation are the sole and exclusive property of 3tc. Nothing in this Agreement shall be construed as conveying title in the Applications or Application Documentation to the Licensee.
7.4 The Licensee will not use the Applications except as provided within this agreement. Without limiting the generality of the foregoing, the Licensee will not cause or permit the Applications and related materials to be reproduced, published, disclosed, reverse compiled, disassembled or distributed or sub-licensed, transferred or derivative works created.
7.5 The Licensee shall not, without the prior written consent of 3tc, divulge any part of the Confidential Information to any person except to employees of the Licensee who need to know the same or any person who is from time to time appointed by the Licensee to maintain any equipment on which the Applications are being used (in accordance with the terms of the License) and then only to the extent necessary to enable such person properly to maintain the equipment.
7.6 The Licensee shall promptly notify 3tc if it becomes aware of any breach of confidence by any person to whom the Licensee divulges all or part of the Confidential Information and shall give 3tc all reasonable assistance in connection with any proceedings which 3tc may institute against such person for breach of confidence.
7.7 The Licensee shall during the continuance of this Licence effect and maintain adequate security measures to safeguard the Application Materials from access or use by unauthorised persons.
7.8 The Licensee will permit 3tc to check the use of Application Materials by the Licensee at all reasonable times and 3tc and its employees shall be entitled to enter any of the Licensee’s premises for the purpose.

8. Dispute Resolution
Any dispute or difference which may arise between the Customer and the Contractor in connection with or arising out of the Contract may, by agreement of both parties, be resolved by arbitration in which event, such dispute or difference shall be referred to a single arbitrator to be agreed between the Customer and the Contractor, or, failing such agreement within fourteen days, to be nominated by the President for the time being of the Chartered Institute of Arbitrators in the United Kingdom.

9. Force Majeure
Neither party shall be liable for delays or failures of performance resulting from circumstances outside their control, including without limitation, Acts of God, transportation delays, riots, acts of war, or terrorism, government regulations imposed after the date of this EULA, communications line or other network failures, interruptions or delays or power failures.

10. General Terms
10.1 The Licensee agrees that this licence is the complete and exclusive statement of the agreement between them and 3tc and supersedes any other previous proposal or agreement whether oral or written. Any representations, modifications or amendments shall be of no force unless contained in a written memorandum and signed by a Director of 3tc.
10.2 The Licence Agreement is governed by and interpreted in accordance with the laws of England and the parties agree to submit to the non-exclusive jurisdiction of the English courts. Either party’s failure or delay in enforcing any provision thereof will not waive that party’s rights. If any provision of this agreement is found invalid or unenforceable pursuant to any judicial decree the remainder of this Agreement shall remain valid and enforceable according to its terms.
10.3 No exercise or failure to exercise, or delay in exercising any right, power or remedy vested in either party under or pursuant hereto shall constitute a waiver by that party of that or any other right, power or remedy.
10.4 Notwithstanding that the whole or any part of any provision of this Agreement may prove to be illegal or unenforceable, the other provisions of this Agreement and the remainder of the provision in question shall remain in full force and effect.
10.5 The Licensee is not entitled to assign, sub-licence or otherwise transfer its rights or obligations under this Agreement without the prior written consent of 3tc (not to be unreasonably withheld in the case of internal re-organisation or restructuring). 3tc shall be entitled to assign its rights or obligations under this Agreement to any third party, on giving notice to the Licensee, and in any event for the purpose of corporate reconstruction, reorganisation, merger or analogous proceeding.
10.6 All notices required to be given under this Licence shall be made in writing by (i) first class post, postage prepaid, certified, return receipt, (ii) by facsimile or email followed immediately by first-class mail, or (iii) by personal delivery to the address set forth herein, or other such address as provided in writing. Such notices shall be deemed given three (3) days after mailing pursuant to (i) above or one (1) day after full compliance with (ii) or (iii) above.

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