IF YOU HAVE ENTERED INTO A SOFTWARE LICENCE AND MAINTENANCE AGREEMENT WITH PUSH TECHNOLOGY LIMITED FOR THE VERSION OF THE DIFFUSION SOFTWARE THAT YOU HAVE DOWNLOADED, THE TERMS OF SUCH LICENCE SHALL APPLY TO YOUR USE OF THIS SOFTWARE AND THE TERMS OF THIS USER LICENCE WILL NOT APPLY TO YOU. IF YOU HAVE NOT ENTERED INTO A SOFTWARE LICENCE AND MAINTENANCE AGREEMENT WITH PUSH TECHNOLOGY LIMITED FOR THE VERSION OF THE DIFFUSION SOFTWARE YOU HAVE DOWNLOADED YOUR USE OF THE DIFFUSION SOFTWARE WILL BE GOVERNED BY THE TERMS OF THIS USER LICENCE.
IMPORTANT – PLEASE READ THE TERMS AND CONDITIONS OF THIS USER LICENCE CAREFULLY BEFORE CONTINUING. THE LICENCE TO USE THE DIFFUSION SOFTWARE SHALL BE SUBJECT TO THESE TERMS AND CONDITIONS SHALL BE DEEMED TO BE ACCEPTED BY THE LICENSEE UPON THE EARLIER OF THE LICENSEE’S ACCEPTANCE OF THE TERMS OF THIS USER LICENCE OR THE INSTALLATION OR USE OF THE DIFFUSION SOFTWARE BY OR ON BEHALF OF THE LICENSEE. THESE TERMS AND CONDITIONS SHALL APPLY TO THE EXCLUSION OF ANY OTHER.
PUSH grants to the Licensee a non-exclusive, non-transferable limited licence for fourteen days or such other period as may be agreed by PUSH in writing (“Term”) to use the Software in object code form on its own internal computer system limited to the number of connections, servers and users as determined by PUSH to carry out the Evaluation in accordance with the terms and conditions of this User Licence. The Term shall commence on the date upon which the Licensee downloads the Software.
2.1 PUSH shall either provide the Licensee with a key to the Software or such password and/or authentication key to enable the Licensee to access PUSH’s hosted system to enable the Licensee to use the Software in accordance with this User Licence.
3.1 Upon PUSH’s request and in any event upon expiry of the Term, the Licensee shall immediately cease to use the Software and when requested by PUSH, an officer of the Licensee shall uninstall it from its systems. The Licensee shall certify in writing to PUSH, such certification to be received no later than three days after the date of such request, that it has complied with the requirements of this clause.
3.2 The Licensee shall only use the Software for the purpose of conducting the Evaluation and not for any other purpose.
3.3 Without prejudice to clause 3.2, the Licensee shall not:
3.4 In connection with the Evaluation, the Licensee shall:
3.5 Within fourteen days of the date of a request by PUSH the Licensee shall furnish PUSH with a statement signed by one of its officers verifying that the Software has been and is being used in accordance with the terms of the User Licence.
3.6 PUSH shall have the right from time to time to inspect and have access to any premises (and to the computer equipment located therein) at or on which the Software is being kept or used, and have access to any records kept in connection with the User Licence, for the purposes of ensuring that the Licensee is complying with the terms of the User Licence provided that PUSH provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times. Without prejudice to PUSH’s rights to access the premises as set out in this clause 3.6, where the Software allows for PUSH to audit the Licensee’s use of the Software remotely, PUSH may do so at any time.
3.7 In the event that any audit reveals that the Licensee has not complied with the terms of the User Licence, the Licensee shall pay the cost of the audit and shall be invoiced at the then current list price payable for a licence to use the Software in the way and to the extent it has been used by the Licensee, together with interest thereon (at the rate of 4% per annum above the base rate for the time being of Lloyds TSB Bank plc) and such licence fees shall become due with immediate effect.
3.8 The restrictions set out above do not apply to the Third Party Code which is governed by separate licences.
4.1 No title or rights of ownership in any intellectual property rights or otherwise in the Software are or will be transferred to the Licensee and the Licensee shall have no rights in or to the Software other than the right to use it in accordance with the terms of the User Licence.
4.2 Title in and to the Software and any additions, modifications to or derivative works of the Software (but not of the Third Party Code) created by or on behalf of PUSH or the Licensee, including but not limited to, all intellectual property rights therein shall be and remain vested in and with PUSH and the Licensee hereby assigns the same with full title guarantee and free from encumbrances to PUSH. The Licensee hereby agrees to do all acts and things, including without limitation the signing of documents, to give effect to this clause
4.3 The Licensee shall not act in any way to jeopardise or adversely affect the intellectual property rights of PUSH and shall do all things reasonably required by PUSH to ensure such rights are properly protected and vested in PUSH.
5.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause
5.2. For the avoidance of doubt the Software, any information related to the Software and any passwords and authentication keys provided by or on behalf of PUSH to the Licensee shall be the confidential information of PUSH. This clause 5.1 does not apply to Third Party Code.
5.2 Each party may disclose the other party’s confidential information:
5.3 Confidential information of a party does not include any information that:
5.4 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this User Licence.
6.1 The Licensee undertakes to indemnify and hold PUSH harmless against any and all liability, losses, costs and expenses (including without limitation any legal fees and costs), either incurred by PUSH or by a third party, arising from or in connection with:
6.2 To the extent permitted by applicable law, PUSH expressly disclaims any warranty for the Software and the Third Party Code. The Software and the Third Party Code are provided ‘As Is’ without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, satisfactory quality, reasonable care and skill, non infringement, or fitness of a particular purpose. PUSH does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software or Third Party Code. PUSH gives no warranties that no harm will be caused by the transmission by the Software and the Third Party Code or from its website of a computer virus, worm, time bomb, logic bomb, or other such computer program. PUSH further expressly disclaims any other warranty or representation to the Licensee or to any third party.
6.3 The liability of PUSH to the Licensee, whether in contract, tort or otherwise, in relation to the User Licence, to the Software and the provision of any other information hereunder to the Licensee or their use by the Licensee or by any other person, or the consequences of their use, is excluded to the maximum extent permitted under applicable law. In no event shall PUSH be liable for any loss or damage (including, without limitation, lost profits, business interruption, or lost information) rising out of the Licensee’s use of or inability to use the Software, even if PUSH has been advised of the possibility of such damages. In no event will PUSH be liable for loss of data, loss of profit or for indirect, special, incidental, punitive, consequential or other loss or damages based in contract, tort or otherwise. PUSH shall have no liability with respect to the content of the Software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, moral rights or the disclosure of confidential information.
6.4 By accepting the User Licence on these terms the Licensee acknowledges that the Software may not be free from defects.
6.5 PUSH’s liability under or in connection with this User Licence shall in no event exceed £2,500 in the aggregate provided that this clause 6.5 shall not exclude or limit PUSH’s liability for: (i) death or personal injury caused by the PUSH’s negligence; or (ii) fraud or fraudulent misrepresentation.
7.1 The User Licence shall expire on the last date of the Term (the “Expiry Date”). The User Licence may be extended beyond the Expiry Date by written agreement of PUSH.
7.2 PUSH may terminate the User Licence with immediate effect at any time upon written notice to the Licensee.
7.3 It is understood and agreed by the parties that clauses 3, 4, 5, 6, 7, 8.1, 8.6, 8.8 and 8.9 of the User Licence shall survive its expiry or termination and remain in full force and effect.
8.1 Waivers: A waiver of a breach or default under the User Licence shall not be a waiver of any other or subsequent breach or default. The failure or delay by either party in enforcing compliance with any term or condition of the User Licence shall not constitute waiver of such term or condition, unless such term or condition is expressly waived in writing.
8.2 Headings: The titles and headings used in the User Licence are intended for convenience only and shall not in any way affect the meaning or construction of any provision of the User Licence.
8.3 Assignment: The User Licence and the rights and obligations hereunder shall not be assignable by the Licensee without the prior written consent of PUSH.
8.4 Separate Entities: Nothing in the User Licence shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute either party as an agent of the other for any purpose whatsoever, and neither party shall have the authority or power to bind the other party, or to contract in the name of and create a liability against the other party in any way or for any purpose, unless explicitly instructed in writing to do so.
8.5 Notices: All notices, reports and other writings which are required to be given or submitted pursuant to the User Licence shall be in writing and delivered personally or sent by post, or by confirmed facsimile transmission, to the address that a party may from time to time notify to the other party. Any notice so sent shall be deemed to have been duly given: (i) if sent by personal delivery or courier, upon delivery at the address of the relevant party; (ii) if sent by pre-paid first-class post or recorded delivery from within the country in which the address is located, at 9.00 am on the second business day after posting; (iii) if sent by Airmail from outside the country in which the address is located, at 9.00 am on the tenth business day after posting; (iv) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; and (v) if sent by fax, upon confirmation of transmission.
8.6 Entire Agreement: The User Licence represents the entire understanding of the parties with respect to the subject matter hereof, and supersedes all proposals or agreements, oral or written, and all other communications between the parties related to the subject matter of the User Licence, including without limitation any representations or warranties made by either party hereto or its representatives. The User Licence may not be amended or modified except in a writing duly executed by the parties.
8.7 Third Party Rights: A person who is not a party to this User Licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this User Licence.
8.8 Governing Law: The parties hereto agree that the User Licence, including without limitation, all transactions affected hereunder, its validity and enforceability and all relationships between the parties in this connection shall be construed under and be governed in all respects by English law.
8.9 Jurisdiction: The parties hereby agree that any and all disputes arising out of or in connection with the User Licence shall exclusively submitted to and settled by English courts and the parties hereby submit to such exclusive jurisdiction.
