FJ2 Software License Agreement 2017-03-20T21:51:39+00:00

THIS PROGRAM IS LICENSED UNDER THE TERMS OF THE SOFTWARE LICENSE AGREEMENT BELOW.

Parties:
1. Lialis B.V (registered number 301 695 88) whose registered office is Galvanistraat, the city Ede in the Netherlands (“Lialis”).

2. ‘The Licensee’: The user or installer of the computer software programs the subject of this agreement which, for the avoidance of doubt, may include affiliated and subsidiary companies of the Licensee.

Recital:
Lialis has agreed to grant the Licensee, and the Licensee has agreed to accept, a non-exclusive licence to use the computer software program “Lialis Solution” (“Licensed Programs”) and associated “Lialis Solution” documentation (“Program Documentation”) listed in the Licensed materials of this agreement.

Operative provisions: Grant of licence and provision of support Lialis in consideration of the payment by the Licensee of the fee set out in the Schedule (“Licence Fee”) in accordance with clause 2 below:
1.1 grants to the Licensee a non-exclusive perpetual licence to use the Licensed Programs and to possess and refer to the Program Documentation; and
1.2 undertakes to the Licensee to provide the technical support referred to in clause 4 (“Technical Support”) upon the terms and conditions of this agreement.

Licence Fee
1.3 The Licence Fee shall include the cost of:
1.3.1 The delivery of the Licensed Program Materials (comprising the Licensed Programs and Program Documentation) to the Licensee; and
1.3.2 The provision of the Technical Support.
1.3.3 The provision of Software Maintenance for a period of 12 months from the Acceptance Date.
1.4 The Licence Fee (plus goods and services tax, if applicable) shall be invoiced by Lialis on or around the Acceptance Date and shall be payable by the Licensee within 30 days of receipt of that Lialis invoice.
1.5 Lialis may charge the Licensee, and the Licensee must pay, interest in respect of the late payment of any sum due under this agreement (as well after as before judgment) at the rate of 5% per cent per annum above the base rate from time to time from the due date of payment until the relevant amount is paid.

Installation testing and acceptance
1.6 On delivery of the Licensed Program Material, the Licensee shall install the Licensed Programs and shall be entitled free of charge to use the Licensed Programs for 10 mail files provided that it is not used for the purpose of its trade or business but solely for the purpose of assessing whether the Licensed Programs meet the Licensee’s requirements.
1.7 If during the Trial Period the Licensee decides that the Licensed Program Materials do not meet its requirements then the Licensee shall be entitled by 30 days’ notice upon Lialis to terminate this agreement. On, or prior to, the effective date of termination, the Licensee must, at Lialis’s option, return to Lialis or destroy the Licensed Program Materials.
1.8 If the Licensee does not terminate this agreement by notice pursuant to clause 1.7 above or if during the Trial Period it uses the Licensed Programs for the purposes of its trade or business then with effect from the day next following the expiration of the Trial Period the Licensee shall be deemed to have accepted the Licensed Program Materials (“the Acceptance Date”).

Technical support
1.9 With effect from the Acceptance Date and for a period of 12 months from that date, Lialis shall use its reasonable endeavors to provide in respect of each of the Licensed Programs advice by telephone email on the use of the Licensed Programs.
1.10 The Licensee shall supply in writing by email to Lialis a detailed description of any fault in relation to which it would like Technical Support and the circumstances in which the fault arose.
1.11 Technical Support shall not be provided for any fault resulting from:
1.11.1 the improper use operation or neglect of the Licensed Program Materials;
1.11.2 the failure by the Licensee to implement recommendations advised by Lialis during problem resolution in respect of the Licensed Program Materials;
1.11.3 any repair adjustment alteration or modification of the Licensed Programs by any person other than Lialis without Lialis’s prior written consent;
1.11.4 the use of the Licensed Programs for a purpose for which they were not designed.
1.12 Lialis shall upon request by the Licensee provide Technical Support notwithstanding that the fault results from any of the circumstances described in clause 1.11 above. Despite clause 1.6, Lialis shall in such circumstances be entitled to levy additional charges for the Technical Support which will be payable in accordance with clause 1.14.
1.13 Despite clause 1.6, Lialis shall be entitled to levy additional charges in the manner set out in clause 1.14 below if Technical Support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee’s request to have been unnecessary.
1.14 Any additional charges shall be agreed between Licensor and Licensee and then levied by Lialis monthly in arrears and shall be payable by the Licensee (together with goods and services tax thereon, if applicable) within 30 days of receipt of an invoice therefor.

Software Maintenance
1.15 With effect from the Acceptance Date and for a period of 12 months from that date, Lialis shall provide to the Licensee any new, corrected or enhanced version of the Software as created by Lialis. Such enhancement shall include all modifications to the Software which increase the speed, efficiency or ease of use of the Software, or add additional capabilities or functionality to the Software.
1.16 With effect from the Acceptance Date and after a period of 12 months from that date, the Licensee may continue to receive maintenance support for successive twelve (12) month periods. The charge for such optional maintenance support shall be 20% of the License Fee. The Licensee shall notify Lialis in writing if it desires to receive optional maintenance. If the Licensee fails to take optional maintenance and later elects to receive it, Lialis reserves the right to charge the Licensee its maintenance fees for the period of the lapse in maintenance. Lialis may elect to discontinue maintenance at any time upon notice to the Licensee, and refund of any then unearned maintenance fees. The Licensee may elect to discontinue maintenance at any time upon notice to Lialis, and receive refund of any outstanding maintenance fees.

2 Property and confidentiality in the Licensed Program Materials
2.1 The Licensed Program Materials contain confidential information of Lialis and all copyright, trademarks and other intellectual property rights in the Licensed Program Material (including any modifications to them) are the exclusive property of Lialis.
2.2 The Licensee shall not:
2.2.1 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; or
2.2.2 remove or alter any copyright or other proprietary notice on any of the Licensed Program Materials.
2.3 The Licensee shall:
2.3.1 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 Programs (including where appropriate the Program Documentation);
2.3.2 reproduce on any copy (whether in machine readable or human readable form) of the Licensed Program Materials Lialis’s copyright and trade mark notices;
2.3.3 maintain an up-to-date written record of the number of copies of the Licensed Program Materials and their location and upon request promptly provide such record to Lialis; and
2.3.4 notify Lialis immediately if the Licensee becomes aware of any unauthorized use of the whole or any part of the Licensed Program Materials by any person; and
2.3.5 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 Lialis in the Licensed Program Materials.

2.4 The Licensee shall inform all relevant employees agents and sub-contractors that the Licensed Program Materials constitute confidential information of Lialis and that all intellectual property rights therein are the property of Lialis 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 Copying of the Licensed Program Materials
3.1 The Licensee shall be entitled to make back-up copies of each of the Licensed Programs.  Any such copy shall in all respects be subject to the terms and conditions of this agreement and shall be deemed to form part of the Licensed Programs.
3.2 The Licensee shall be entitled to copy in whole or in part the Program Documentation but only to the extent that such copying is required for the Licensee to use the Licensed Programs in accordance with this agreement.

4 Warranty
4.1 Subject to the exceptions set out in clause 4.4 below and the limitations upon its liability in clause 5 below Lialis warrants that:
4.1.1 to the best of its knowledge and belief, its title to and property in the Licensed Program Materials is free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this agreement;
4.1.2 subject to the Licensee complying with the terms of this agreement, the Licensed Programs will for a period of 90 days from the Acceptance Date conform to the program specifications contained in the Program Documentation; and
4.1.3 it will perform the Technical Support with reasonable care and skill.
4.2 The Licensee shall give notice to Lialis as soon as it is able upon becoming aware of a breach of warranty.
4.3 Lialis shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clause 1.11 above.
4.4 Without prejudice to the foregoing, Lialis does not warrant that the use of the Licensed Programs will meet the Licensee’s data processing requirements or that the operation of the Licensed Programs (including where in machine-readable form the Program Documentation) will be uninterrupted or error free.
4.5 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Licensed Program Materials and the provision of the Technical Support are hereby excluded.
4.6 Licensor will, at its expense, defend any suit or claim brought against Licensee and will indemnify Licensee against any settlement agreed to by Licensor or any award of damages and costs against Licensee by a final court judgment based on a claim that Licensee’s use of the Software in accordance with this license agreement infringes any intellectual property right, if Licensee:  (a) promptly notifies Licensor in writing of the suit or claim; and (b) reasonably cooperates and assists Licensor with defense of the suit or claim.

5 Limitation of liability
5.1 The following provisions set out Lialis’s entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Licensee in respect of:
5.1.1 any breach of its contractual obligations arising under this agreement; and
5.1.2 any liability for any representation statement or tortious act or omission including negligence, or otherwise, arising under or in connection  with this agreement.
5.2 Any act or omission on the part of Lialis or its employees agents or sub-contractors falling within clause 5.1 above shall for the purposes of this clause 5 be known as an ‘Event of Default’.
5.3 Lialis’s liability to the Licensee for death or personal injury resulting from its own or that of its employees’ agents’ or sub-contractors’ negligence shall not be limited.
5.4 Subject to the limits set out in clause 5.5 below Lialis shall accept liability to the Licensee in respect of damage to the tangible property of the Licensee resulting from the negligence of Lialis or its employee’s agents or sub-contractors.
5.5 Subject to the provisions of clause 5.3 above (and excluding any liability arising under clause 4.6 above) Lialis’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the value of this offer.
5.6 Subject to clause 5.3 above Lialis shall not be liable to the Licensee in respect of any Event of Default for loss of profits, loss of goodwill loss of revenue loss of data or any type of special indirect or consequential loss (including loss or damage suffered by the Licensee as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Lialis had been advised of the possibility of the Licensee incurring the same.
5.7 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
5.8 The Licensee hereby agrees to afford Lialis not less than 60 days (following notification thereof by the Licensee) in which to remedy any Event of Default hereunder.
5.9 Except in the case of an Event of Default arising under clause 5.3 above Lialis shall have no liability to the Licensee in respect of any Event of Default unless the Licensee shall have served notice of the same upon Lialis within 30 days of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
5.10 Nothing in this clause shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.

6 Risk in the licensed program materials
6.1 Risk in the Licensed Program Materials will pass to the Licensee upon the date of delivery. If subsequently the Licensed Program Materials are (in whole or in part) destroyed damaged or lost Lialis will upon request replace the same subject to the Licensee.

7 Confidentiality
7.1 Each of the parties hereto undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:
7.1.1 trivial or obvious;
7.1.2 already in its possession other than as a result of a breach of this clause; or
7.1.3 in the public domain other than as a result of a breach of this clause; or
7.1.4 required to be disclosed at law.

8 Force majeure
8.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an ‘Event of Force Majeure’).
8.2 Each of the parties hereto agrees to give notice forthwith 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.

9 Invalidity and severability
9.1 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby 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.

10 Entire agreement
10.1 This Agreement sets out the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to its subject matter. To avoid doubt, Lialis shall not be liable to the Licensee for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this agreement other than those representations agreements statements or undertakings confirmed by a duly authorized representative of Lialis in writing or expressly incorporated or referred to in this agreement.
10.2 The Licensee accepts that the Licensed Program Materials were not designed and produced to its individual requirements and that it was responsible for their selection.

11 Assignment and sub-licensing
11.1 Save in respect of an assignment to an affiliate or subsidiary company, the Licensee shall not assign or otherwise transfer this agreement nor any of its rights or obligations hereunder nor sub-license the use (in whole or in part) of the Licensed Program Materials without the prior written consent of Lialis, such consent not to be unreasonably withheld.

12 GST
12.1 All amounts stated in this Agreement are exclusive of goods and services tax and any goods and services tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefor.

13 Law
13.1 This agreement shall be governed by and construed in accordance with Dutch law and the parties hereto agree to submit to the exclusive jurisdiction of the Dutch court in Arnhem.