THE LICENSE
Image Processing and Vision Company Limited (trading as Improvision) (the "Licensor", which expression shall include its subsidiaries, agents, successors and assigns) is authorized to license the software, documentation and any fonts contained in this package (the "Software") and upon opening the sealed package containing the Software, the Licensee accepts a non-exclusive License to "Use" (as hereinafter defined) the Software on a single computer system (the "System") for single use specified below upon the terms and subject to the conditions contained herein. The Licensee owns the media on which the Software is recorded, but the Licensor retains title to the Software.
This License entitles the Licensee to:
(a) load, install and Use the Software contained in this package on one Central Processing Unit ("CPU") of the System (a separate LICENSE fee being required for each CPU upon which the Licensee wishes to use the Software)
(b) Use the Software in accordance with the provisions of Section 2 of this License;
and, where the Licensee signs and returns the warranty card enclosed with the Software, to:
(a) receive telephone technical support relating to the Software within the Licensor's usual business hours, within the period of the software maintenance Agreement;
(b) receive information on upgraded versions of the Software at such cost (if any) as may be notified to the Licensee.
1. Acceptance of this LICENSE
The terms and conditions of this License are deemed to be accepted:
(a) by the Licensor upon dispatch/delivery by the Licensor of this package to the Licensee; and
(b) by the Licensee by breaking the seal of this sealed package containing the Software; or
(c) by the Licensee signing and returning the enclosed warranty card.
2. Use of the Software
(a) For the purposes of this License "Use" shall mean and include:
(i) utilization of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk, CD ROM or other storage device) of the System for the processing of the System instructions or statements contained in such Software;
(ii) copying the Software which is in machine-readable form for Use by the Licensee on the System for the purposes only of understanding the contents of such machine-readable material and for back-up provided that (A) no more than one (1) non-transient copy will be in existence under this License at any one time without prior written consent from the Licensor or as otherwise permitted by the applicable law, and (B) such backup copy includes all copyright information contained on the original;
(iii) storing the whole or any part of the Software on the System or other storage unit or disk; and
(iv) utilizing (but not copying) the instructional and/or operational manuals relating to the Software.
(a) The Licensee acknowledges and accepts that the Software is protected against unauthorized use by means of a serial number.
(c) The Licensee shall also be permitted to Use the Software on a portable, lap-top or home computer where the Software is permanently installed on the hard disk or other storage device of the System (but not a file server) and the Licensee or its relevant employee as the case may be is the predominant user of the Software and such Use will not breach the concurrent user limit where applicable.
(d) THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, OR AIR TRAFFIC CONTROL MACHINES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
(e) The Licensee's rights under this License will terminate automatically without notice from the Licensor if the Licensee fails to comply with any term(s) of this License.
3. License Fee
(a) Where the License Fee has not been paid by the Licensee at the time the Software is obtained from the Licensor or its agent the License Fee will be payable within the number of days specified in the Licensor's invoice unless otherwise agreed to in writing by the Licensor.
(b) An additional License Fee is payable for each CPU of the System upon which the Licensee wishes to Use the Software. In the event that the Licensee's System is inoperable, the Licensee shall be permitted to Use the Software on a back-up system at no extra charge, until the System is operational.
4. Licensee's Undertakings
(a) The Licensee undertakes not to perform any of the acts referred to in this sub-clause (a) except to the extent and only to the extent required by the applicable law as applied to the Licensee as a lawful user (i.e. a party with a right to use) of the Software and only then for the specific limited purpose stated in such applicable law or hereunder.
The Licensee undertakes:
(i) not to copy the Software (other than for normal System operation and as specified in Section 2 above) nor otherwise reproduce the same provided that the Licensee may copy the Software for back-up or archival purposes or incidentally, in the course of converting the Software in accordance with Section 4(a)(iii) below;
(ii) not to translate, adapt, vary, or modify the Software or its source or object code;
(iii) subject to subsection (iv) below, without the Licensor’s prior written consent, not to disassemble, decompile, reverse engineer, modify, or create derivative works based on the Software in whole or in part or transmit the Software over a network, provided however that in the case of decompilation, the Licensee may incidentally decompile the Software only if it is essential to do so in order to achieve interoperability of the Software with another software program (“Permitted Purpose”)and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party to whom it is not necessary to disclose or communicate such information and it is not used to create any software which is substantially similar to the Software or the expression of the Software nor used in any manner which would be restricted by copyright.
(iv) It shall be a condition precedent to the decompilation of the Software permitted in accordance with the terms referred to in subsection (iii) above, that the Licensee shall have notified the Licensor in writing (a) that it wishes to perform the decompilation; (b) the purposes for which it wishes to perform the decompilation; and (c) the information which it requires for such purposes. Only when the Licensor has either (a) not responded within a reasonable time or (b) has not offered to provide the Licensee with information required under (c) above (for which the Licensor may require payment) shall the Licensee be permitted to continue with the decompilation.
The Licensee undertakes:
(b) to maintain accurate and up-to-date records of the number and location of all copies of the Software.
(c) to supervise and control Use of the Software in accordance with the terms of this License.
(d) to ensure that its employees, agents and other duly authorized parties who will use the Software (including any transferee of the Software) are notified of this License and the terms hereof prior to such use.
(e) to reproduce and include the copyright notice of the Licensor or such other party as may be specified in or on the Software (the "Owner") on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software made herein.
(f) not to provide or otherwise make available the Software in whole or in part (including where applicable, but not limited to program listings, object code and source program listings, object code and source code), in any form to any person other than the Licensee's employees or as specified in (d) above without prior written consent from the Licensor.
(g) within 14 days after the date of termination or discontinuance of this License for whatever reason, to destroy the Software and all updates, upgrades or copies, in whole and in part, in any form including partial copies or modifications of the Software received from the Licensor or made in connection with this License, and all documentation relating thereto and certify in writing that the Licensee has complied with this subsection.
5. Disclaimer of Warranty
The Licensee acknowledges and agrees that use of the Software is at the Licensee's sole risk. The Software is provided "AS IS" and without warranty of any kind and the Licensor and Licensor's licensor(s) (for the purposes of Sections 5 and 6, Licensor and Licensor's licensor(s) shall be collectively referred to as "Licensor") EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. THE LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR A LICENSOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, LICENSEE (AND NOT LICENSOR OR A LICENSOR AUTHORIZED REPRESENTATIVE) SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THE TERMS OF THIS DISCLAIMER DO NOT AFFECT OR PREDJUDICE THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING LICENSOR PRODUCTS OTHERWISE THAN IN THE ORDINARY COURSE OF BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY LICENSOR'S NEGLIGENCE.
6. Licensor's Limitation of Liability
THE LICENSOR SHALL NOT BE LIABLE TO THE LICENSEE FOR ANY LOSS OR DAMAGE, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS LICENSE, THE SOFTWARE, ITS USE OR OTHERWISE. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, THE LICENSOR EXPRESSLY EXCLUDES LIABILITY FOR NEGLIGENCE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE SOFTWARE, ITS USE, THE SYSTEM OR IN RESPECT OF OTHER EQUIPMENT OR PROPERTY, OR FOR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS. LIABILITY OF THE LICENSOR AND ITS SUPPLIERS TO THE LICENSEE, IF ANY, FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS LICENSE, OR IN THE EVENT THAT ANY EXCLUSION CONTAINED IN THIS LICENSE SHALL BE HELD TO BE INVALID FOR ANY REASON AND THE LICENSOR BECOMES LIABLE FOR LOSS OR DAMAGE, SHALL BE LIMITED TO FIFTY DOLLARS ($50.00).
7. Copyrights Patents, Trade Marks and Other Intellectual Property Rights
The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto are and remain the sole property of the Licensor and the Owner. The Licensee shall not during or at any time after the expiration or termination of this License in any way question or dispute the ownership by the Licensor and/or the Owner thereof.
8. Indemnity
(a) The Licensor agrees to indemnify and save harmless and defend at its own expense the Licensee from and against any and all claims of infringement of any patent, trade mark, industrial design, copyright or other proprietary right affecting the Software provided that (i) the Licensee shall not have done, permitted or suffered to be done anything which was not expressly authorized by this License or which may have been or become an infringement of any such rights (including but not limited to using the Software to perform the Licensee's or other party's applications or using the Software in combination or merged with other software programs or devices) and (ii) the Licensee shall have exercised a commercially reasonable standard of care in protecting the same; failing which, the Licensee shall indemnify the Licensor against all actions, proceeding costs, claims and expenses incurred in respect thereof.
(b) In the event that any such infringement occurs or may occur, the Licensor may at its sole option and expense:
(i) procure for the Licensee the right to continue using the Software or infringing part thereof; or
(ii) modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or
(iii) replace the Software or infringing part thereof by other software of similar capability; or
(iv) repay to the Licensee the License Fee or balance thereof relating to the whole or the infringing part of the Software.
(c) The Licensor’s obligations under subsection (a) or (b) above are expressly conditioned upon and subject to:
(i) the Licensor having sole control of the defense and/or settlement of any such infringement claim;
(ii) the Licensee promptly notifying the Licensor in writing of any claim specified in subsection (a) above that is made against the Licensee and providing the Licensor with the authority to proceed as set forth in (i) above; and
(iii) the Licensee providing the Licensor with all information known to the Licensee relating to such infringement claim and otherwise providing the Licensor with such assistance as the Licensor may reasonably require to settle or oppose any such claims.
(d) The Licensor's liability under this clause shall, at the Licensor's option, be limited to the License Fee, less an equitable proportion thereof, as relates to the period prior to cessation of the use of the Software by the Licensee because of such claims of infringement.
9. Confidential Information
(a) All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this License and that it shall not at any time during or for a period of six years after expiration or termination of this License, disclose the same, whether directly or indirectly, to any third party without the Licensor's prior written consent.
(b) The Licensee further agrees that it shall not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor shall the Licensee lease, license, sub-license or otherwise deal with the Software (other than by sale as specifically referred to in sub-clause (d) below) or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by the Licensor.
(c) The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent required by law.
(d) The Licensee may sell this License provided that:
(i) all copies of the Software held by the Licensee pursuant to this License shall either be destroyed or transferred to the Transferee on completion of the sale;
(ii) the Licensee procures written agreement by the Transferee accepting the terms of the License; and
(iii) the Licensee gives prior notice to the Licensor of the transfer and the identity and address of the Transferee and receives Licensor’s prior written consent.
10. Force Majeure
The Licensor shall be under no liability to the Licensee in any way whatsoever for destruction, damage, delay or any other matters of any nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs or industrial disputes, fire, explosion, earthquakes, acts of God, flood, drought, bad weather or power outages; the unavailability of deliveries, supplies, software disks or other media or the requisitioning or other act or order by any government department, council or other constituted body.
11. Termination
(a) This License shall terminate and any and all rights granted to the Licensee hereunder shall revest in the Licensor:
(i) upon thirty (30) days written notice in the event that Licensee or any of its directors, officers, employees or agents is in breach of any term, condition or provision of this License and fails to remedy such breach (if capable of remedy) within such thirty (30) days; and
(ii) should the Licensee, its successors or permitted assigns, suspend business, make an absolute assignment of the bulk of its assets for the benefit of creditors, consent to the appointment of a trustee, custodian or receiver, or be declared insolvent or bankrupt; or if a trustee or custodian or receiver is appointed for the Licensee for a substantial part of its property without its consent and is not discharged within sixty (60) days of such appointment, or if bankruptcy, reorganization, rearrangement, insolvency or liquidation proceedings are instituted by or against the Licensee and are not dismissed within sixty (60) days of the commencement thereof.
(b) Upon termination, the Licensee shall pay to the Licensor all costs and expenses, including legal and other fees incurred and all arrearages of fees, charges or other payments arising in respect of the Software, this License or otherwise and shall comply with its undertaking specified in Section 4(g) above.
(c) Termination of this License shall be in addition to and not in lieu of any rights and remedies the Licensor may have under this License or under the applicable law. Notwithstanding the termination of this License, the provisions of Sections 6, 7, 9 and 13 through 19 shall survive such termination.
12. Assignment
The Licensee shall not assign rent, lease, loan, sublicense, distribute, or otherwise transfer all or any part of the Software or this License without the prior written consent of the Licensor, in accordance with Section 9(d) above.
13. Waiver
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this License nor prejudice that party's rights to take subsequent action.
14. Headings
The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this License.
15. Severability
In the event that any of these terms and conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
16. Law
The parties hereby agree that the License concluded between them and constituted on these terms and conditions shall be construed in accordance with the law of the State of Massachusetts without regard to its conflict of laws principles.
17. Jurisdiction
In any legal action related to this License, the Licensee agrees (a) to the exercise of jurisdiction over it by a state or federal court in Boston, Massachusetts and (b) that all legal actions relating to this License shall be instituted in one of the courts specified in (a) above.
18. Export Law Assurances
The Licensee may not use or otherwise export or reexport the Software except as authorized by United States law and laws of the jurisdiction in which the Software was obtained. The Licensee agrees and certifies that (i) neither the Software nor any related documentation or product thereof is intended to be shipped, transferred or reexported, directly or indirectly, into any country prohibited by the United States Export Administration Act of 1979 and the regulations thereunder, as amended, nor will be used for any purpose prohibited by the Act, and (ii) that Licensee is not located in, under control of, or a national or a resident of a country on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. The Licensee agrees to comply with all laws and regulations pertaining to the export of the Software.
19. Restricted Rights
If any Software or related documentation is to be used by the United States government, it shall be provided with “Restricted Rights.” Use, duplication or disclosure by the government is subject to restrictions set forth in subparagraph (C)(1)(ii) of the Department of Defense Regulations Supplement (“DFARS”) 252.227-7013, Rights in Technical Data and Computer Software (October 1988), Federal Acquisition Regulation (“FAR”) 52.227-14, Rights in Data-General, including Alternate III (June 1987), as applicable, and FAR 52.227-19. Supplier: Image Processing and Vision Company Limited, Viscount Centre II, University of Warwick Science Park, Millburn Hill Road, Coventry, CV4 7HS, England.
20. Complete Agreement
This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by the Licensor.