VQ Communications – End User License Agreement

This Software Licence (EULA) (this “Licence”) is made and entered into between VQ Communications Ltd (“VQ”) having an office at Unit 4b, Byron House, Landsowne Court, Bumpers Way, Chippenham, Wiltshire. SN14 6RZ and the licensee downloading and/or installing the Software pursuant to the Main Agreement (“Licensee”).

WHEREAS:

VQ is the owner of certain Software and the Documentation related thereto as defined herein. The Licensee has entered into the Main Agreement with VQ or a Reseller for the delivery and licensing of the Software.

By downloading and/or installing the Software, the Licensee accepts the terms of this Licence. The individual downloading and/or installing the Software acknowledges and agrees that he/she has authority to bind the Licensee to the terms of this Licence.

1. DEFINITIONS

1.1.  “Application Programming Interface” (“API”) shall mean set of classes, methods and properties that allow control of MCU’s, users, conferences and call performance.

1.2.  “Designated Systems” shall mean the computer hardware, software, operating system and platforms or functional equivalents (i) owned or controlled by the Licensee; and (ii) identified in or conforming to the VQ platform specification.

1.3.  “Documentation” shall mean all or any portion of those visually or machine readable materials provided for use in connection with the Software, including without limitation, all revisions, which shall describe the specifications, characteristics, features, functions, and use of the Software.

1.4.  “Intellectual Property Rights” shall mean copyright, patent, trademarks, trade names, service marks, trade secrets, confidential information or proprietary information rights, moral rights, and all other proprietary, related and similar rights, whether registered or unregistered, which subsist or will subsist, now or in the future, in any part of the world.

1.5.  “Main Agreement” means the agreement between the Licensee and either VQ or a Reseller for the delivery and support of the Software.

1.6.  “Reseller” means an authorised reseller of the Software with which the Licensee enters into the Main Agreement.

1.7.  “Software” shall mean Acano Manager, as modified or replaced by VQ from time to time.

1.8.  “Third Party Software” means software created / developed by a third party which may be sub-licensed to the Licensee or may be licensed directly to the Licensee on the third party’s standard terms.

2. LICENCE GRANT

2.1. Subject to the Licensee entering into and complying with the terms of the Main Agreement, VQ hereby grants the Licensee a non-exclusive, royalty free, worldwide licence to:

a) install and use the Software on the Designated Systems solely (A) in accordance with the Documentation, and (B) in connection with the Licensee providing video conferencing services to the Licensee’s customers or users worldwide;

      b) use the Software on up to two servers: Production and Lab/Test.

2.2. Certain Limitations

2.2.1. The Licensee agrees that it shall not:

      2.2.1.1. use, reproduce, distribute or transfer (with or without consideration) the Software except as provided in this Licence;

2.2.1.2. decompile, reverse engineer, disassemble, modify or prepare any derivative works of the Software, unless permitted in writing by VQ;

2.2.1.3. use its rights in any manner to provide information to or the training of any third party; nor

      2.2.1.4. distribute the Software to any other third party except as expressly authorised herein.

2.2.2. The Licensee shall only:

      2.2.2.1. use the Software in its executable form;

2.2.2.2. transfer the Software to another Designated System upon prior written notification by the Licensee to VQ; and

2.2.2.3. use the Third Party Software in accordance with the applicable third party terms & conditions.

3. UPDATES OF AND MODIFICATIONS TO THE SOFTWARE

3.1.  The development of the Software will remain under the direct control of VQ. VQ may solicit, from time to time, inputs from the Licensee for product roadmap planning.

3.2.  The Licensee shall be entitled to offer feedback and response and provide ideas and suggestions. For the avoidance of doubt, nothing in this clause puts VQ under any obligation to take such ideas and suggestions into account when developing the Software.

4. INTELLECTUAL PROPERTY RIGHTS

4.1.  Except as may be specifically permitted under this Licence, the Licensee shall not remove any of VQ’s proprietary rights notices from the Software or the Documentation. No Party is authorised to use the trade name or any trademark of the other Party except in promotional material supplied or agreed by the Party owning the name or mark. Such agreement must be in writing and set out the terms governing such use.

4.2.  The Licensee acknowledges that all Intellectual Property Rights in the Software (and parts thereof) and Documentation shall be owned by and will remain the property of VQ or its licensors.

5. CONFIDENTIAL INFORMATION

5.1.  Each party shall, during the term of this Licence for the period specified in clause 5.3, keep confidential, and shall not use for its own purposes (other than implementation of the licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets, technical information and information of commercial value) which may be disclosed by the other party or become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information. All confidential information disclosed by either party to the other party under this Licence shall be used by the receiving party solely in connection with the performance of this Licence and by authorised employees who are directly involved in the use of confidential information and who have agreed in writing to be bound by the terms of this Licence.

5.2.  The terms of this Licence are confidential and may not be disclosed by the Licensee without the prior written consent of VQ.

5.3.  The obligations of each party under this Licence regarding use and disclosure of confidential information shall not terminate until three (3) years after the expiry or termination of this Licence.

6. DURATION

Subject to early termination in accordance with the terms of this Licence, this Licence shall remain in full force and effect in accordance with the Main Agreement. In the event of termination or expiry of the Main Agreement, this Licence shall automatically terminate.

7. TERMINATION

7.1.  Without prejudice to the rights in the Main Agreement, in the event a party commits a material breach and (if remediable) does not remedy any such breach within thirty (30) days of the notice describing such failure, the non-defaulting party may terminate this Licence with immediate effect upon written notice.

7.2.  Either party by written notice to the other party may terminate this Licence if the other party ceases to carry on business or becomes insolvent or bankrupt (or its local equivalent) or makes any assignment of assets for the benefit of creditors generally (or group of creditors), or on the appointment of a liquidation manager, receiver, or administrative receiver of the other party for the benefit of creditors.

7.3.  Effect of Termination.

7.3.1.  On termination of this Licence, the rights of the Licensee to use the Software as provided in this Licence shall automatically terminate.

7.3.2.  Termination of this Licence shall not affect any rights or obligations of either party as at termination.

7.3.3.  On termination for any reason the Licensee shall immediately destroy or return to VQ (at VQ’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to VQ that it has done so.

8. DISCLAIMERS

WITHOUT PREJUDICE TO ANY WARRANTIES GIVEN BY VQ IN THE MAIN AGREEMENT, NO WARRANTIES ARE GIVEN IN RELATION TO THIS LICENCE AND THE SOFTWARE IS

PROVIDED ‘AS IS’. IN PARTICULAR, VQ DOES NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS LICENCE WHETHER BY STATUTE, COMMON LAW OR OTHERWISE ARE HEREBY EXCLUDED, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE.

9. LIMITATION OF LIABILITY

9.1.  Except as expressly stated in clause 9.3 VQ shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

9.1.1.  special damage even though the Supplier was aware of the circumstances in which such special damage could arise;

9.1.2.  loss of profits;

9.1.3.  loss of anticipated savings;

9.1.4.  loss of business opportunity;

9.1.5.  loss of goodwill; or

9.1.6.  loss or corruption of data.

9.2.  THE TOTAL LIABILITY OF EACH PARTY UNDER THIS LICENCE, IF ANY (INCLUDING BUT NOT LIMITED TO ANY CLAIM ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, STRICT LIABILITY, OR OTHERWISE) SHALL BE LIMITED TO A MAXIMUM OF THE FEES PAID BY THE LICENSEE IN RESPECT OF THE LICENSING OF THE SOFTWARE.

9.3.  The exclusions in clause 9 shall apply to the fullest extent permissible at law, but VQ does not exclude liability for:

9.3.1.  death or personal injury caused by the negligence of VQ, its officers, employees, contractors or agents;

9.3.2.  fraud or fraudulent misrepresentation;

9.3.3.  breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

9.3.4.  any other liability which may not be excluded by law.

10. AUDIT

The Licensee grants VQ the right to annually inspect the Licensee’s books and records for the sole purpose of verifying compliance with the grant of licence in this Licence. Such inspection shall be performed at VQ’s expense at the Licensee’s offices during the Licensee’s normal business hours upon thirty (30) days prior written notice and shall not interfere with the Licensee’s normal business operations.

11. ASSIGNMENT

All of the terms and conditions of this Licence shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. Except as specifically stated in this Licence, neither this Licence nor any of the rights, interests or obligations of any party shall be assigned or delegated by either party without the prior written consent of the other party. Any unauthorized assignment or delegation shall be null and void.

12. APPLICABLE LAW

This Licence shall be construed in all respects in accordance with the laws of England and the Parties agree to submit to the exclusive jurisdiction of the English Courts.

13. MISCELLANEOUS

   13.1.  Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.

13.2.  Modifications. No modification of this Licence will be valid unless in writing and signed by a duly authorized representative of each Party.

13.3.  Breach of laws or regulations. The Licensee and VQ will, at the earliest opportunity, notify the other Party if it becomes aware that the arrangements contemplated by this Licence are or may be in breach of any laws or regulations effective in the Territory.

13.4.  General Obligations

13.4.1.  Compliance with Law. Each party shall comply with all applicable laws and regulations in respect of its activities under or pursuant to this Licence.

13.4.2.  Relationship of the Parties. It is agreed that the relationship between the parties is that of independent contractors, and nothing contained in this Licence shall be construed or implied to create a relationship of partnership, joint venture, agency, employment, franchise or any relationship other than that of independent contractors. Neither party shall have the power or authority to bind or obligate the other party.

13.4.3.  Survival. In addition to the rights and obligations which survive as expressly provided for elsewhere in this Licence, clauses 5 (Confidential Information), 7.3 (Effect of Termination), 8 (Disclaimer), 9 (Limitation of Liability), and 12 (Applicable Law) shall survive and be enforceable after termination or cancellation of this Licence.

13.4.4.  Severability. In the event any provision of this Licence is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

13.4.5.  Amendment. This Licence shall not be amended or modified, nor shall any waiver of any right hereunder be effective unless set forth in a document executed by duly authorised representatives of both Parties.

13.4.6.  A person who is not a party to this Licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

13.4.7.  Force Majeure. Neither party shall be liable for failure to fulfil or delay in fulfilling its obligations when due to causes beyond its reasonable control, including as a result or consequence of any act of God, act or war or terrorism, destruction or cessation of general market activity or other similar occurrence.

13.4.8.  Entire agreement. This Licence (together with any Main Agreement, if entered into with VQ), states the entire agreement between the parties with respect to the subject matter of this Licence and shall terminate and supersede all previous discussions, proposals, negotiations, representations, agreements and communications, whether oral or written, between the parties.