Software Licence and Terms of Supply
These Terms contain provisions placing obligations on the Licensee and excluding and limiting Delcam’s liability. The Licensee’s attention is drawn in particular (but not exclusively) to clause3 and 4 (restrictions and obligations on use), 5 (warranties), 6 (limitation of liability) 8 (risk), 9 (indemnity), 10 (termination) and 15 (law and jurisdiction)
- Definitions and interpretationIn these Terms, unless the context otherwise requires, the following expressions have the following meanings:
1.1.1 “Delcam” means Delcam plc, Talbot Way, Small Heath Business Park, Birmingham B10 0HJ, UK.
1.1.2 “Delivery Date” means the date of delivery of the Licensed Program Materials to the Licensee.
1.1.3 “Designated Equipment” means computer equipment that provides the minimum operating environment for the Licenced Program as specified in the Program Documentation.
1.1.4 “Licence” means the licence granted by Delcam to the Licensee under clause 2.1.
1.1.5 “Licensed Program” means the software program or programs in object code form known as PowerSHAPE Free Evaluation.
1.1.6 “Licensed Program Materials” means the Licensed Program, the Hardware Lock and the Program Documentation.
1.1.7 “Licensee” means the person, firm, company or other organisation to whom Delcam licences the Licensed Program Materials pursuant to these Terms.
1.1.8 “Program Documentation” means any Program Specification, instruction manuals, user guides and other information relating to the Licensed Program supplied by Delcam to the Licensee in paper or electronic form. Program Documentation is written in English which shall take precedence and any translation of the Program Documentation into another language which may be supplied for information shall not be regarded as definitive. .
1.1.9 “Program Specification” means the technical specifications from time to time published by Delcam in respect of the Licensed Program.
1.1.10 “Site” means the address for delivery of the Licensed Program Materials specified by the Licensee.
1.1.11 “Terms” means the terms and conditions set out in this document and any document referred to herein.
1.1.12 “Use” means the copying or transmission of the Licensed Program into the Designated Equipment and the processing of the instructions contained in the Licensed Program.
1.2 In the construction of these Terms, (except where the context otherwise requires):
1.2.1 Contents and headings: contents and headings appear for convenience and do not affect the construction of the whole or any part of these Terms;
1.2.3 English legal terms: a reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any other legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal term;
1.2.4 Rights of third parties: except where expressly stated nothing in these Terms is intended to confer upon any third party any rights whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise;
1.2.5 Statutes and regulations: a reference to a statute includes any regulation or order made under that statute. Reference to a statute or regulation or order is a reference to the statute or regulation or order as amended or substituted.
- Grant of Licence
2.1 Delcam grants to the Licensee a non-exclusive licence to Use the Licensed Program upon the Designated Equipment and to possess and refer to the Program Documentation subject to these Terms.
2.2 The Licensed Program may not be:
2.2.1 used for the operation of any timesharing bureau or similar activity for the benefit of third parties; nor
2.2.2 the subject of any patent or patent application or any other form of application or registration for intellectual property protection.
3.1 The Licensed Program Materials contain confidential information of Delcam and all copyright, trade marks and other intellectual property rights in the Licensed Program Materials are the exclusive property of Delcam.
3.2 The Licensee shall not:
3.2.1 except as provided in clause 4 make back-up copies of the Licensed Program Materials;
3.2.2 reverse compile, copy or adapt the whole or any part of the Licensed Program Materials for the purposes of correcting errors in the Licensed Program Materials;
3.2.3 except solely for the purposes expressly permitted by and in accordance with Section 296A(1) or Section 50C(2) Copyright, Designs and Patents Act 1988 copy, adapt or reverse compile the whole or any part of the Licensed Program Materials;
3.2.4 assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Program Materials or use the Licensed Program Materials on behalf of any third party or make available the same to any third party;
3.2.5 remove or alter any copyright or other proprietary notice on any of the Licensed Program Materials.
3.3 The Licensee shall:
3.3.1 keep confidential the Licensed Program Materials and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the Use of the Licensed Program in accordance with the Licence;
3.3.2 reproduce on any copy (whether machine readable or human readable form) of the Licensed Program Materials Delcam’s copyright, trade mark and other proprietory notices;
3.3.3 maintain an up to date written record of the number of copies of the Licensed Program Materials and their location and upon request forthwith produce such record to Delcam;
3.3.4 notify Delcam immediately if the Licensee becomes aware of any loss of or unauthorised use of the whole or any part of the Licensed Program Materials by any third party;
3.3.5 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of Delcam in the Licensed Program Materials.
3.4 The Licensee shall inform all relevant employees, agents and sub-contractors that the Licensed Program Materials constitute confidential information of Delcam and that all intellectual property rights therein are the property of Delcam and the Licensee shall take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause 3 and the terms of the Licence.
- Copying of the Licensed Program Materials
4.1 The Licensee shall be entitled to make back up copies of the Licensed Program for disaster recovery purposes. Any such copy shall in all respects be subject to these Terms and will be deemed to form part of the Licensed Program.
4.2 The Licensee shall not be entitled to copy in whole or in part the Program Documentation except for the Licensee’s personal use only in accordance with the Licence. Further copies of the Program Documentation are available on request from Delcam at its then prevailing rates or by accessing the same in electronic format from such electronic media or website as may be notified by Delcam from time to time and where downloaded and/or printed any such copies shall be for the Licensee’s personal use only in accordance with the Licence.
5.1 Subject to the exceptions set out in clause 5.4 and the limitations upon its liability in clause 6 Delcam warrants that:
5.1.1 its title to any property in the Licensed Program Materials is free and unencumbered and that it has the right, power and authority to license the same upon these Terms;
5.1.2 the media upon which the Licensed Program Materials are supplied will for a period of 90 days from the Delivery Date be free from defects in materials, design and workmanship;
5.1.3 the Licensed Program will for a period of 90 days from the Delivery Date conform to the Program Specification;
5.2 The Licensee shall give notice to Delcam as soon as it is reasonably able upon becoming aware of a breach of warranty.
5.3 Subject to clause 5.4 Delcam will use its reasonable endeavours to remedy any breach of the warranties set out in clauses 5.1.2, 5.1.3 and 5.1.4 free of charge by diagnosing the fault and using its reasonable endeavours to rectify the fault (remotely or by attendance on Site as determined by Delcam), or of fixes in respect of the Licensed Program and the making of all necessary consequential amendments (if any) to the Program Documentation.
5.4 Delcam shall have no liability to remedy a breach of warranty where such breach arises as a result of:
5.4.1 the improper use, operation or neglect of either the Licensed Program Materials or the Designated Equipment; or
5.4.2 the modification of the Licensed Program or its merger (in whole or in part) with any other software; or
5.4.3 the use of the Licensed Program on equipment other than the Designated Equipment; or
5.4.4 the failure by the Licensee to implement recommendations in respect of or solutions to faults previously published by Delcam on its website; or
5.4.5 any repair, adjustment, alteration or modification of the Licensed Program by any person other than Delcam without Delcam’s prior written consent; or
5.4.6 any breach by the Licensee of any of its obligations under any maintenance agreement in respect of the Designated Equipment; or
5.4.7 the use of the Licensed Program for a purpose for which they were not designed.
5.5 Without prejudice to the foregoing Delcam does not warrant that the Use of the Licensed Program will meet the Licensee’s data processing requirements or any specific purpose or that the operation of the Licensed Programs will be uninterrupted or error free.
5.6 Subject to the foregoing all conditions, warranties, terms and undertakings express or implied statutory or otherwise in respect of the Licensed Program Materials are hereby excluded to the fullest extent permitted by law.
- Limitation and exclusion of liability
THE LICENSEE’S ATTENTION IS EXPRESSLY DRAWN TO THE PROVISIONS OF THIS CLAUSE 6.
6.1 Liability for:
6.1.1 death or personal injury caused by negligence; or
6.1.2 liability under Part 1 of the Consumer Protection Act 1987; or
6.1.3 fraudulent misrepresentation;
is not excluded or limited.
6.2 Subject to the following provisions of this clause 6 or to any other express provisions relating to liability contained in these Terms the liability of Delcam or that of any members of the same group of companies to which Delcam belongs and for its or their employees, agents, distributors or sub-contractors for any act or default in relation to these Terms whether in contract, tort (including negligence), strict liability or otherwise shall be limited to:
6.2.1 the amount of single event cover in Delcam’s public or product liability insurance (whichever may be applicable) in force at the time the loss or damage occurs for loss or damage to tangible property; or
6.2.2 in the case of all other liability the sum of £1000
6.3 No liability shall attach for any loss (or associated expenses) in the nature of:
6.3.1 loss of profits, loss of revenue, loss of production or loss of use;
6.3.2 loss of goodwill or reputation;
6.3.3 third party claims;
6.3.4 other indirect, special or consequential losses as generally understood under English law;
whether foreseeable or otherwise and whether or not Delcam had been made aware of the possibility of the same arising. Subject to the aforesaid and to the limitations in clause 6.2, Delcam accepts liability for direct losses as generally understood under English law.
6.4 Save in respect of:
6.4.1 liabilities described in clause 6.1;or
6.4.2 liability for loss or damage to tangible property; or
6.4.3 liability under clause 7 (intellectual property rights indemnity);
no liability for damages shall arise until such time as the Licensee has given Delcam written notice to remedy the default in accordance with any particular clause of these Terms and failed to do so or, in any other case, having been given written notice to remedy the default (if remediable) and Delcam has failed to do so within a period of thirty (30) days.
6.5 Delcam will not be liable to the Licensee for loss arising from or in connection with any representation, agreement, statement or undertaking made before the parties entered into the contract on these Terms other than those representations, agreements, statements or undertakings confirmed by duly authorised representatives of Delcam in writing or expressly incorporated or referred to in these Terms. THE LICENSEE EXPRESSLY REPRESENTS THAT IT IS NOT RELYING UPON (AND THEREFORE SHALL HAVE NO REMEDY IN RESPECT OF) ANY SUCH REPRESENTATION, AGREEMENT, STATEMENT OR UNDERTAKING OTHER THAN AS EXPRESSLY SET OUT OR REFERRED TO IN THESE TERMS. These Terms constitute the whole agreement and understanding of the parties as to their subject matter and there are no terms, conditions, warranties or obligations whether oral or written, express or implied, whether by statute or common law, other than those contained in or referred to in these Terms. Nothing in these Terms shall limit Delcam’s liability for fraudulent misrepresentation.
6.6 The Licensee accepts that the Licensed Program Materials were not designed and produced to its individual requirements or for any specific purpose or purposes of the Licensee and that it was responsible for their selection and accordingly Delcam shall not be liable to the Licensee if the Licensed Program Materials are not fit for the Licensee’s purposes.
6.7 Advice or assistance provided by Delcam or its group companies, agents or representatives relating to any aspect of the Licensed Program (whether provided before, during or after delivery) including (but not limited to) operational usage or potential applications is given for the Licensee’s sole assessment and decision (if necessary after trial operations by the Licensee) having regard to the Licensee’s own particular circumstances. Accordingly such advice or assistance is given without responsibility or liability.
6.8 The Licensee accepts that the Licensed Program is supplied as a tool which is constantly being developed and that the Licensee is solely responsible for the way in which the Licensed Program Materials are used and for any product data design or other output resulting from the Licensee’s Use of the Licensed Program Materials including their Use and the consequences of such Use in conjunction with any other software or equipment or product. Without prejudice to the foregoing obligation in accordance with best industry practice the Licensee shall at each stage verify data which is input into and produced from the Licensed Program Materials.
6.9 Delcam is concerned to ensure that the Licensed Program Materials can be provided to the Licensee for no charge and taking into account the fact that the Licensee is in a better position than Delcam to know or ascertain the amount of any loss which will arise out of any defect in the Licensed Program Materials this must necessarily involve the incorporation of the provisions of this clause 6.
- Intellectual Property Rights indemnity
7.1 Delcam will indemnify and hold harmless the Licensee against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Licensed Program Materials by the Licensee infringes the patent, copyright, registered design or trade mark rights of the said third party (an “Intellectual Property Infringement”), provided that the Licensee:
7.1.1 gives notice to Delcam of any Intellectual Property Infringement immediately upon becoming aware of it; and
7.1.2 gives Delcam the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the claim or action except upon the express instructions of Delcam; and
7.1.3 acts in accordance with the reasonable instructions of Delcam and gives to Delcam such assistance as it reasonably requires in respect of the conduct of the defence.
7.2 Delcam will reimburse the Licensee its reasonable costs incurred in complying with the provisions of clause 7.1 above.
7.3 Delcam will have no liability to the Licensee in respect of an Intellectual Property Infringement if it results from any breach of the Licensee’s obligations under these Terms.
7.4 In the event of an Intellectual Property Infringement Delcam will be entitled at its own expense and option either to:
7.4.1 procure the right for the Licensee to continue using the Licensed Program Materials; or
7.4.2 make such alteration, modification or adjustment to the Licensed Program Materials so that they become non-infringing without incurring a material diminution in function; or
7.4.3 replace the Licensed Program Materials with non-infringing substitutes provided that the substitutes do not entail a material diminution in function.
7.5 The limitation of liability in clause 6.3 shall not apply to this indemnity.
- Risk in the Licensed Program Materials
8.1 Risk in the Licensed Program Materials will pass to the Licensee following delivery. If subsequently the Licensed Program Materials are destroyed, damaged, lost or stolen, Delcam will upon request as soon as reasonably practicable replace them subject to the Licensee paying its then prevailing charges.
8.2 Without prejudice to the provisions of clause 8.1, the Licensee shall take such steps as may be necessary in respect of any matters arising out of or relating to its possession and Use of the Licensed Program to the extent at least to which Delcam excludes or limits its liability in respect of the same pursuant to these Terms including where appropriate obtaining insurance cover.
- Indemnity by Licensee
The Licensee shall indemnify and keep Delcam indemnified from and against any liability of any kind to any third party howsoever arising (whether in contract, tort or otherwise and including, but not limited to, liability arising from the negligence of Delcam or from the negligence of any person for whom Delcam is vicariously liable) in respect of or in connection with:
9.1 any defect in the Licensed Program Materials; and/or
9.2 any loss, injury or damage of any kind (whether direct, indirect or otherwise and including but not limited to any loss of profit and/or any incidental, consequential or special loss or damage of any description) arising out of in respect of or in connection with the installation or supply of the Licensed Program Materials or their Use;
except to the extent that Delcam has expressly assumed liability under these Terms for the loss, injury or damage concerned.
10.1 The Licence will continue until terminated in accordance with the provisions of clause 10.2 below.
10.2 The Licence may be terminated:
10.2.1 by the Licensee upon giving not less than 30 days’ notice in writing to Delcam;
10.2.2 forthwith by either party if the other commits any material breach of any of these Terms and which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days of a written request to remedy it;
10.2.3 forthwith by either party if the other convenes a meeting of its creditors or if a proposal is made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purposes of an amalgamation or reconstruction).
10.3 Any termination of the Licence will be without prejudice to any other rights or remedies to which a party may be entitled under these Terms or at law and will not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
10.4 Within 10 days of the termination of the Licence (irrespective of the reason for termination), the Licensee will at Delcam’s sole option either return all copies of the Licensed Program Materials in its possession or control or destroy all copies of the Licensed Program Materials in its possession or control and a duly authorised officer of the Licensee shall certify in writing to Delcam that the Licensee has complied with its obligation under this clause 10.4.
- Force majeure
11.1 Neither party will be liable for any breach of its obligations under these Terms resulting from causes beyond its reasonable control (an “Event of Force Majeure”).
11.2 Each of the parties agrees to give notice to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
11.3 If a default due to an Event of Force Majeure continues for more than 4 weeks, then the party not in default will be entitled to terminate the Licence. Without prejudice to the provisions of clauses 10.3 and 10.4 neither party will have any liability to the other in respect of the termination of the Licence as a result of an Event of Force Majeure.
The waiver by either party of a breach or default of any of these Terms by the other party will not be construed as a waiver of any succeeding breach of the same or any other provision nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have under these Terms operate as a waiver of any breach or default by the other party.
Any notice, request, instruction or other document to be given under these Terms will be delivered in person or by first class registered post (airmail if overseas) or by facsimile transmission to the address or to the facsimile number of the other party and any such notice or other document will be deemed to have been served (if delivered personally) at the time of delivery, (if sent by post) upon the expiration of 2 business days after posting (5 business days if overseas) and (if sent by facsimile transmission) upon the expiration of 2 hours after receipt of a report of satisfactory transmission if before 3.00pm on a business day (local time to the addressee) otherwise at 10.00am on the next business day (local time to the addressee). For the purposes of this clause 13 a “business day” shall exclude Saturdays, Sundays and public holidays. Service by facsimile shall only be valid if a confirmatory letter is despatched no later than the next available business day in the place of transmission.
- Invalidity and severability
If any provision of these Terms is found by any court or administrative body to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of these Terms and all provisions not affected by such invalidity or unenforceability will remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
- Assignment and sub licensing
The Licensee shall not be entitled to assign or otherwise transfer these Terms nor any of its rights and obligations under these Terms nor sub-license the use (in whole or in part) of the Licensed Program Materials without the prior written consent of Delcam.
- Law and jurisdiction
16.1 These Terms will be governed by and construed in accordance with English law and the parties agree subject to clause 16.2 to submit to the exclusive jurisdiction of the English courts. The Licensee hereby irrevocably waives any right to claim the application of any alternative law or jurisdiction.
16.2 The submission by Delcam and the Licensee to such jurisdiction shall not however limit the right of Delcam to commence any proceedings arising out of these Terms in any other jurisdiction it may consider appropriate.