THIS AGREEMENT (the
"Agreement") is hereby entered into between Kilclare Limited,
with offices at Gryphon House, 9 Winton Avenue, Rathgar, Dublin 6, IRELAND
(the "Licensor") and you (either an individual or a single
entity), the party executing this Agreement ("Licensee"),
on the following terms and conditions:
1. Licensed Program.
This is a license agreement between Licensor and Licensee with respect
to the VISUAL Assurance (the "Licensed Program"). As used
herein, the term Licensed Program shall also include the accompanying
documentation provided by Licensor (the "Documentation") and
any Upgrades to the Licensed Program which may be offered to Licensor's
customers generally subject to the conditions of Section 6 below.
2. Acceptance/Rejection
of this Agreement.
(a) Acceptance.
By breaking the seal enclosing the Licensed Program media container
or by indicating your acceptance during the installation process and
installing, copying, downloading, accessing, storing, executing, displaying
or otherwise using the Licensed Program, Licensee acknowledges acceptance
of and shall be deemed to have executed this Agreement, and Licensee
agrees to be bound by the terms and conditions of this Agreement.
(b) Rejection.
If Licensee does not agree to the terms and conditions of this Agreement,
and does not indicate acceptance as provided in subparagraph (a) above,
Licensee shall not have the right to install, copy, download, access,
store, execute, display or otherwise use the Licensed Products, and
Licensee must promptly destroy all remaining copies of the Licensed
Program in Licensee's possession or under Licensee's control.
3. Grant. Upon acknowledgement,
acceptance and/or execution of this Agreement by Licensee, and provided
that Licensee pays to Licensor all applicable License Fees, as defined
in Section 7 below, Licensor grants to Licensee a non-exclusive and
non-transferable license, during the term hereof, to install, download,
access, store, execute and display (collectively, "Use") the
Licensed Program in accordance with this Agreement. The number of users
permitted to Use the Licensed Program shall be determined in accordance
with Section 7 below. This Agreement provides Licensee with a license
to Use the Licensed Program; the Licensed Program is not sold pursuant
to the terms of this Agreement.
4. Use of Licensed
Program.
(a) General. Licensee
is authorized to Use the Licensed Program solely for Licensee's internal
purposes in order to assist Licensee in connection with its assessment
of its corporate governance, risk-control processes, internal controls
and legal and regulatory compliance, and not for any other purpose ("Permitted
Uses"). In furtherance, and not in limitation of, the foregoing,
Licensee shall not utilize the Licensed Program in competition with
Licensor or otherwise, in connection with the provision of any services
to a third party, and Licensee shall not provide the Licensed Program
or any copies thereof to any other person or entity. Licensee shall
be permitted to make an archival copy of the Licensed Program and a
backup of the relevant data that Licensee would require in the event
of a disaster. Licensee acknowledges that the Licensed Program is provided
only in object code form.
(b) Installation.
The Licensed Program is distributed to Licensee on self-installing media
or by electronic download, as described in the Documentation. Licensee
must install the Licensed Program on properly configured and compatible
computer equipment, as provided in the Documentation. Licensee must
also ensure that all required data is in proper format and that no other
software or equipment having an adverse impact on the Licensed Program
is present.
(c) Compliance with
Laws. In using the Licensed Program, Licensee agrees to comply with
all local, national and international laws and regulations applicable
to Licensee.
5. Reservation of
Rights.
(a) Intellectual
Property. The Licensed Program is protected by intellectual property
laws, including copyright, patent and trade secret laws. The trademark
VISUAL Assurance (the "Trademark") is protected under trademark
laws.
(b) Rights to Licensed
Program. Ownership of the Licensed Program and the Trademark, and all
intellectual property rights therein and thereto, shall remain at all
times the exclusive property of Licensor. This Agreement does not convey
any proprietary rights or other interests in the Licensed Program to
Licensee other than the limited license granted hereunder. By executing
this Agreement and paying the applicable License Fee to Licensor, Licensee
obtains the limited license to Use the Licensed Program in object code
form as set forth herein. Any other use of the Licensed Program by any
person, business, corporation, government, organization or any other
entity is strictly prohibited and is a material violation of this Agreement.
(c) All Other Rights
Reserved. All rights not expressly granted to Licensee pursuant to this
Agreement are reserved by Licensor. Except as expressly granted to Licensee
herein, Licensor reserves to itself all right to (directly or indirectly,
in whole or in part) and Licensee agrees not to disassemble, decompile,
reverse engineer, modify, alter, or adapt the Licensed Program, translate
or prepare any derivative work of the Licensed Program, or distribute,
loan, sell, assign, rent, lease, or license, sublicense, reproduce or
otherwise distribute or operate the Licensed Program to or for the benefit
of any third party. The foregoing limitation does not prohibit Licensee
from making a copy of the Licensed Program for archival or backup purposes.
The Licensee will not make more than one such copy and will promptly
notify Licensor thereof.
(d) Confidential
Information. Licensee also agrees that any information obtained as a
result of or in violation of this Agreement will be confidential information
automatically and irrevocably deemed assigned to and owned exclusively
by Licensor. Licensee will at all times use due diligence to safeguard
and protect all such confidential and proprietary information pertaining
to the Licensed Program. Licensee also agrees to communicate the terms
and conditions of this Agreement to those persons employed by Licensee,
if any, who come into contact with the Licensed Program, and to ensure
their compliance with such terms and conditions, including, without
limitation, this confidentiality provision and the prohibitions set
forth in Section 5(b) above.
(e) Proprietary
Notices. Licensee will ensure that all trademarks, service marks, copyright
notices, legends and other proprietary notices pertaining to the origin,
identity or ownership of the Licensed Program remain intact and clearly
legible.
6. Program Support
and Maintenance.
(a) Support and
Maintenance. Licensor may provide support of and Upgrades to the Licensed
Program. Upgrades are classified as either Build Upgrades, Release Upgrades
or Version Upgrades. Support and entitlement to all Upgrades is referred
to as Program Support and Maintenance (PSM). PSM includes the correction
and repair of Defects, telephone and e-mail support and all Upgrades
as defined below. There is no additional fee to Licensee for PSM during
the first 60 days of this Agreement; thereafter, Licensee may elect
to have PSM by completing and so indicating on Licensor's then-current
order form (the "Order Form") and paying the appropriate fee
set forth on the Order Form. Licensor shall invoice Licensee based on
a calendar year. The first invoice may be for part of a year; thereafter
PSM will be invoiced on January 1
(b) Defects. (i) During the first 60 days of this Agreement and subsequently
on payment of the appropriate PSM fee, Licensor agrees to make commercially
reasonable efforts to correct and repair any Defect (as defined below)
in the Licensed Program.
(ii) A "Defect"
shall be any material reproducible and demonstrable malfunction or failure
to meet or nonconformity with the Documentation. A Defect shall not
be any condition attributable to Licensee's modification or misuse of
the Licensed Program; Licensee's failure to use corrections or enhancements
made available by Licensor; Licensee's use of the Licensed Program in
combination with any product other than those specified by Licensor;
the quality or integrity of data from other automated or manual systems
with which the Licensed Program interfaces; hardware, systems software,
application software, or telecommunications equipment not a part of
the Licensed Program which are inadequate to allow proper operation
of the Licensed Program or which are not operating in accordance with
the manufacturer's specifications; or operation or utilization of the
Licensed Program in a manner not contemplated by this Agreement.
(c) Telephone and
E-Mail Support. During the first 60 days of this Agreement and subsequently
on payment of the appropriate PSM fee, Licensor shall respond by telephone
to requests from Licensee for answers to questions related to the installation
or use of the Licensed Program during the hours of 9:00 AM to 5:00 PM,
in the time zone appropriate to the Licensor's listed Tech Support Centres,
Monday through Friday (other than the public holidays occurring in each
Centre's country).
(d) Upgrades. From
time to time, Licensor may provide Upgrades to the Licensed Program.
Upgrades are classified as either Build Upgrades, Release Upgrades or
Version Upgrades. The Licensed Program has version information embedded
into it. This information is displayed as one or two digits in four
fields that are separated by decimal points. The first field defines
the Version number, the second field defines the Release number and
the fourth field defines the Build number. The Build field is incremented
when a fix is applied to the current Version and Release. A "fix"
is a change to the computer code to correct a defect. The Release field
is incremented whenever a minor enhancement is included and the Version
field is incremented whenever a major enhancement occurs. The classification
of changes into fixes (Build Upgrades), minor enhancements (Release
Upgrades) and major enhancements (Version Upgrades) is at the sole discretion
of the Licensor.
All Build Upgrades
shall be offered to Licensee at no additional charge to Licensee during
the first 60 days of this Agreement.
(i) Subsequently
on payment of the appropriate PSM fee, all Upgrades will be made available
to Licensees only provided that a PSM agreement has been in continuous
effect throughout the term covered by such payment.
(ii) Where a PSM
agreement has not been in continuous effect for a period of more than
six months, Build Upgrades and Release Upgrades will be made available
to Licensees and Version upgrades will be made available by renewing
the PSM Agreement for the subsequent calendar year at the time of Version
Upgrade.
(iii) Licensee agrees
to install Upgrades promptly after receipt thereof from Licensor and
Licensee understands and agrees that its failure to do so will relieve
Licensor of its obligations under this Section 6 for so long as Licensee
fails to make such installation.
(e) Additional Fees
and Expenses. To the extent that Licensor responds to a request for
maintenance service other than with respect to a Defect, Licensor shall
be compensated for the time so expended at Licensor's standard hourly
rates and for any expenses incurred by Licensor, including, but not
limited to, travel expenses, provided that such travel expenses have
been approved by Licensee.
(f) Supplemental
Code. Any supplemental software code provided by Licensor to Licensee
shall be considered part of the Licensed Program and subject to the
terms and conditions of this Agreement.
(g) Licensor's Obligations. Licensee acknowledges that Licensor's obligations,
60 days after the date of execution of this Agreement, to provide Upgrades,
if and when made, correct and repair Defects and provide Licensee with
telephone and e-mail support are contingent upon Licensee's decision
to purchase PSM. In the event that Licensee does not elect to purchase
PSM or at any time allows PSM to expire without renewal, Licensor shall
have no further obligations to Licensee hereunder 60 days after the
date of execution of this Agreement or the expiration of PSM other than
any surviving warranty obligations.
7. Fees and Payment.
(a) Fees. Licensee
agrees to pay to Licensor the appropriate license fee (the "License
Fee") for the Licensed Program, which License Fee shall be based
on the number of intended users of the Licensed Program. If the number
of users increases, the Licensee will promptly notify the Licensor and
will pay additional fees at the then current rate. Such notification
shall be of the essence of this agreement. The amount of the License
Fee shall be determined by reference to Licensor's published prices
(the "Price List") set forth on the Order Form or Licensor's
invoice (the "Invoice") at the time that this License Agreement
is acknowledged, accepted and/or executed. Payment of the License Fee
entitles Licensee to the Use of the Licensed Program in accordance with
this Agreement during the term hereof. Licensee agrees to maintain records
of the number of users of the Licensed Program for purposes of calculating
the applicable License Fee, and Licensee shall permit Licensor access
and the right to audit such records.
(b) Payment. Unless
otherwise stated on the Order Form or Invoice, any and all License Fees
and PSM fees, Upgrade fees, shipping charges and additional expenses,
if any, payable to Licensor shall be payable by Licensee promptly upon
receipt of such Order Form or Invoice. Licensee will pay all sales,
use, value-added, GST, personal property or other governmental tax or
levy associated with this transaction (including interest and penalties
imposed thereon) other than taxes based on the net income or profits
of Licensor. If Licensee fails to pay any amount when due, Licensee's
license to Use the Licensed Program will automatically terminate and
Licensee will pay all costs of enforcement, including reasonable legal
fees.
8. Transfer of License.
Licensee may not assign this Agreement or all or any part of Licensee's
rights or obligations provided herein without Licensor's prior written
consent, and any attempt to the contrary will be of no force or effect
and a material breach of this Agreement. Licensor may withhold such
consent in its sole discretion. Any assignment prohibited herein will
terminate any right to Licensee's continued possession or Use of the
Licensed Program and, in such event, Licensee must promptly destroy
all remaining copies of the Licensed Program in Licensee's possession
or under Licensee's control Licensor shall have the right to assign
this Agreement. This Agreement shall apply to, inure to the benefit
of, and be binding upon the successors in interest and assigns of Licensor.
9. Warranties. The
warranties set forth below are for Licensee's benefit alone, and are
subject to the limitations set forth in Section 10 below. The following
warranties are not assignable and there shall be no third party beneficiaries
thereof.
(a) Noninfringement
Warranty. Licensor warrants that it has all rights necessary to enter
into this Agreement and that, to the best of its knowledge and belief,
Permitted Use by Licensee of the Licensed Program will not infringe
or misappropriate any copyright, trademark, patent, or trade secret
of any third parties.
(b) Software Media.
Licensor warrants that any magnetic media on which the Licensed Program
or the Documentation is recorded shall be free from defects in tangible
materials. Licensor will promptly replace at no charge defective original
media or Documentation returned to it upon receipt of written notice
from Licensee to such effect.
(c) No Performance
Warranty. Except as provided in this Section, Licensee agrees that the
Licensed Program and any services are provided strictly on an "as
is" basis without any expressed or implied warranty, guarantee
or other assurance of quality, conformity with specifications or the
Documentation, reliability or functionality. Licensee accepts all risk
for the suitability, performance or nonperformance of the Licensed Program.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER
WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS
FOR A PARTICULAR PURPOSE. THE LICENSED PROGRAM OFFERS GENERAL GUIDANCE
ONLY AND DOES NOT SUBSTITUTE FOR LICENSEE'S OWN INDEPENDENT PROFESSIONAL
JUDGEMENT. THE LICENSED PROGRAM DOES NOT RENDER OR SUBSTITUTE FOR AUDITING,
ACCOUNTING, FINANCIAL, INVESTMENT, LEGAL, TAX OR OTHER PROFESSIONAL
ADVICE OR SERVICES. BEFORE MAKING ANY DECISION OR TAKING ANY ACTION
THAT MAY AFFECT LICENSEE'S BUSINESS, LICENSEE SHOULD CONSULT A QUALIFIED
PROFESSIONAL ADVISOR.
10. Limitation of Remedies & Liabilities. The following provisions
are a material condition of this Agreement and reflect a fair allocation
of risk:
(a) Remedies. Licensee
agrees that if Licensor violates any warranty set forth in this Agreement,
and if promptly notified of any claim contrary to Licensor's warranties
hereunder, Licensor shall, at its sole discretion: (i) defend through
litigation or obtain through negotiation Licensee's right to continue
using the Licensed Program; (ii) rework the Licensed Program to make
it noninfringing while preserving the original functionality, (iii)
replace the Licensed Program with functionally equivalent software,
or (iv) discontinue use of the Licensed Program and refund the balance
of any License Fee and/or PSM Fees. The foregoing shall be Licensee's
sole and exclusive remedies hereunder. Licensee also agrees that legal
remedies alone provide inadequate protection of Licensor's intellectual
property rights in the Licensed Program and that, in addition to other
relief, in the event that Licensee violates any of the provisions of
this Agreement, Licensor may, without the necessity of posting bond,
obtain temporary and permanent injunctions against Licensee to enforce
those rights.
(b) Liabilities.
IN ALL JURISDICTIONS WHERE THIS LIMITATION IS ENFORCEABLE, LICENSEE
AGREES THAT LICENSOR IS NOT LIABLE TO LICENSEE OR ANY THIRD PARTY FOR
ANY AMOUNT EXCEEDING THE LICENSE FEES AND ANNUAL PROGRAM SUPPORT AND
MAINTENANCE FEES ACTUALLY PAID BY LICENSEE HEREUNDER. IN NO EVENT SHALL
LICENSOR BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST SAVINGS OR PROFIT, LOST DATA OR BUSINESS INTERRUPTION,
EVEN IF LICENSOR IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY); THIS INCLUDES
DAMAGES INCURRED BY LICENSEE, LICENSEE'S CUSTOMERS OR ANY THIRD PARTY.
THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM
WHOM LICENSEE OBTAINED THE LICENSED PROGRAM.
11. Term and Termination.
(a) Generally. This
Agreement shall continue in full force and effect in perpetuity unless
terminated earlier in accordance with this or another Section of this
Agreement. Notwithstanding the foregoing, the term of the PSM agreement
shall continue for 60 days from the date of execution of this Agreement,
unless Licensee elects to continue participation in PSM agreement as
provided in Section 6 above. In such event, the term of the PSM agreement
shall continue in one-year calendar increments for as long as Licensee
continues to pay the appropriate PSM annual fee. This Agreement, including
any PSM agreements, will terminate automatically if Licensee breaches
any provision set forth herein, without refund of the balance, if any,
of the License Fee and/or the annual PSM fee. Licensee may terminate
this Agreement at any time at Licensee's election, without refund of
the balance, if any, of the License Fee and/or the annual PSM fee.
(b) Effect of Termination. Termination of this Agreement will terminate
Licensee's right to possess or Use the Licensed Program. Upon termination
for any reason, Licensee agrees to destroy the original and all copies
of the Licensed Program (including Documentation) and cease all further
Use of it. Termination will have no effect on Licensee's obligation
to safeguard and protect proprietary rights of Licensor under Section
5, disclaimers under Section 9, or limitations under Section 10, which
shall survive the termination or expiration of this Agreement.
12. Disputes, Choice
of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE REPUBLIC OF IRELAND, AND ANY ACTION
SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION
IN THE REPUBLIC OF IRELAND. LICENSEE MUST BRING ANY ACTION AGAINST LICENSOR
WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR BE BARRED FROM INSTITUTING
SUCH ACTION.
13. Miscellaneous.
This document constitutes the entire and exclusive agreement between
the parties with respect to the subject matter hereof and supersedes
all other communications and agreements, whether written or oral between
the parties. This document and Licensee's execution thereof, shall be
considered an original document with authenticated signature admissible
into evidence. Licensee may issue a purchase order, but it will have
no substantive effect on our Agreement. This Agreement may be modified
or amended only by a writing signed by an authorized representative
of Licensor. It is agreed that sales representatives and distributors
of the Licensed Program have no authority to alter this Agreement. Any
provision found by a tribunal of competent jurisdiction to be illegal
or unenforceable shall be automatically conformed to the minimum requirements
of law and all other provisions shall remain in full force and effect.
Waiver of any provision hereof in one instance shall not preclude enforcement
of it on future occasions. Headings are for reference purposes only
and have no substantive effect.
