INDUSTRIAL CODEBOX END USER LICENCE AND SUPPORT AGREEMENT

In return for being provided with access to the Software Materials by Industrial CodeBox Ltd (registered number 05183125) with registered office at The Oakley, Kidderminster Road, Droitwich Spa, Worcestershire, WR9 9AY (“Industrial CodeBox”), you agree (and in doing so, you confirm in your capacity as an individual, that you are an authorised agent for the Licensee) to the following terms and conditions (the “Agreement”; however, the ‘Agreement’ also incorporates the terms in the Industrial CodeBox Order Sheets where applicable) on behalf of the organisation named in the order form which you agreed to, or the organisation named in the Industrial CodeBox Order Sheet (the organisation being referred to as the “Licensee”).

 

The Licensee acknowledges that the Agreement is a contract between the Licensee and Industrial CodeBox, governing the Licensee’s and its employees use of the Software Materials and the Support Service; and that pursuant to this Agreement the Licensee will also be entering into separate licensing agreements with the respective third party licensors (where applicable), as referred to in this Agreement.

 

The Software Materials are licensed to the Licensee. The Software Materials are, and remain the property of Industrial CodeBox and its third party licensors.

By in any way doing one or more of the following: downloading, installing, activating, copying or otherwise using the Software Materials, or any part of them; the Licensee agrees to be bound by the terms of this Agreement. If the Licensee does not agree to the terms of this Agreement, the Licensee may not download, install, activate, copy or in any way use the Software Materials or any part of them.

1          Definitions & Interpretation

Definitions

1.1     In this Agreement the following words and expressions shall have the following meanings:

“Additional Services”

has the meaning attributed to it in clause 6.4.1.

“Agreement”

has the meaning attributed to it above.

“Beta Software”

means any software made available by Industrial Codebox which is expressed to be a ‘beta’ version or which has a version number less than ‘1’.

"Defaulting Party"

has the meaning attributed to it in Clause 7.7.

"Documentation"

means the user documentation for the Software available from the Website as updated from time to time by Industrial CodeBox.

“Effective Date”

means the date that this Agreement becomes effective between the Parties, namely the date that the contact formed by this Agreement comes into force.

“Industrial CodeBox”

has the meaning attributed to it above.

"Industrial CodeBox Offering"

means that part of the Software Materials which is owned and developed by Industrial CodeBox, but excludes: any third party data; any third party software; any third party materials; any third party services; any third party documentation.

“Industrial CodeBox Order Sheet”

means a document, issued by Industrial CodeBox to the Licensee, headed ‘Quote’ or ‘Order’, which is intended by Industrial CodeBox to be binding with regard to pricing or the types of services which are to be offered.

"Industrial CodeBox Website"

means any websites operated by Industrial CodeBox, which offer the Software, with such websites consisting of the website with the url of: www.industrialcodebox.com or www.qvsource.com (as applicable)

"Licence Period"

means the period for which the licence for the Software Materials is valid, as indicated on the Website at the time of purchase of the licence for the Software Materials.

“Licensee”

has the meaning attributed to it above.

"Licensor"

means a third party licensor of any of the Software Materials.

“New Charges Date”

has the meaning attributed to it in Clause 4.3.

"Parties"

means the Licensee and Industrial CodeBox.

"Party"

means the Licensee or Industrial CodeBox (as applicable).

“QVSource SDK”

means the QVSource software development kit provided by Industrial Codebox.

"Software"

means the QVSource software, QVSource SDK, any connectors, the Beta Software and any other software made available by Industrial CodeBox to the Licensee as detailed on the Website; including any updates to the afore-mentioned which are made available to the Licensee from time to time by Industrial CodeBox at Industrial Codebox’s sole discretion.

"Software Materials"

means the Software and the Documentation.

“Subject Matter”

has the meaning attributed to it in Clause 14.1.

"Support Service"

means the support service for the Software made available by Industrial CodeBox to the Licensee pursuant to this Agreement, which is referred to on the Website, and as further described in Clauses 5.6 to 5.8 inclusive.

"Terminating Party"

has the meaning attributed to it in Clause 7.7.

 

 

“Third Party Contracts”

means the Third Party Licences and Third Party EULAs.

"Third Party Licences"

means the third party licences (which are referred to on the Website), including those in respect of connectors and interfaces, imposed by the Licensors on Industrial CodeBox in respect of the Software Materials.

"Third Party EULAs"

means the third party end user licences (which are referred to on the Website) which are stated as being applicable to the Licensee’s use of the Software Materials.

“Warranty Period”

has the meaning attributed to it in Clause 3.3.

"Website"

means the Industrial CodeBox Website; references to details being on the ‘Website’ also includes the Industrial CodeBox Order Sheet; to the extent of any conflict between a provision of the Industrial CodeBox Order Sheet and any other provision of the Website, the respective provision of the Industrial CodeBox Order Sheet shall prevail.

“Year”

means a period of 12 months commencing from: the Effective Date; or from an anniversary of the Effective Date.

Interpretation

1.2     The headings contained in this Agreement are for convenience of reference only and shall not affect its interpretation. 

1.3     References to “person” include an individual, company, firm, partnership, government body, public body, charity, association, or other legal entity. 

1.4     Words indicating the singular shall include the plural and vice versa.  Words indicating a gender shall include each gender.

1.5     The words and phrases “including” and “in particular” shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible. Furthermore (except where already stated) such words shall be deemed to be immediately followed by the words “without limitation”.

1.6     References to any statute or statutory provision shall include (i) any subordinate legislation made under it, and (ii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).

1.7     All sums payable hereunder are expressed exclusive of VAT and any other applicable tax and duty payable upon such sums which shall be added if appropriate at the rate prevailing at the relevant tax point.

1.8     To the extent of any conflict or ambiguity between the provisions of the Agreement and the Third Party Contracts, the provisions of the Third Party Contracts shall prevail.

2          Licensing

Grant of Licence

2.1          Industrial CodeBox hereby grants to the Licensee the non-exclusive, non-transferable, revocable right for the Licence Period to use the Software Materials, subject to the terms and conditions referred to in this Agreement.

2.2          This Agreement grants the Licensee, a licence to use the Software Materials only for its internal business purposes in accordance with the Agreement and Documentation.

Prohibitions

2.3          The Licensee may not distribute copies of the Software Materials to third parties (nor use the Software Materials for the benefit of third parties). Furthermore,  the Licensee agrees that it may not use the Software Materials by multiple users using any single licence key on multiple PCs unless agreed in writing with Industrial CodeBox. If the licence key is a server licence key, it must be installed on one server; for the avoidance of doubt, a PC licence key may only be installed on one PC and not on a server. 

2.4          The Licensee agrees that it may not undertake any of the following acts (except to the extent expressly permitted by law):

2.4.1     copy the Software Materials or any part of them (although the Licensee may make a copy of the Software (and any Documentation provided electronically) for back-up purposes only);

2.4.2     translate, adapt, vary, modify the Software Materials;

2.4.3     disassemble, decompile or reverse engineer the Software;

2.4.4     rent, lease, loan, resell, distribute, network or create derivative works based upon the Software Materials or any part of them (and this includes, without limitation, a prohibition on: selling, leasing, building databases from, or redistributing, data derived or obtained from using the Software);

2.4.5     use the Software to provide any software or a service which competes with the Software;

2.4.6     use the Software in conjunction with any software other than the QlikView application;

2.4.7     use any connectors built by the Licensee with the QVSource SDK with software other than the Software licensed to the Licensee hereunder without the express written permission of Industrial Codebox.;

2.4.8     make available any connectors built by the Licensee with the QVSource SDK, outside its organisation;

2.4.9     any act or omission which has the objective of circumventing the intention of any of the restrictions within the Agreement.

Retention of title and ownership of the Software Materials

2.5          Industrial CodeBox and its third party licensors retain title and ownership of the Software Materials.  No intellectual property rights (including without limitation copyright) are transferred pursuant to this Agreement other than the licence to use the Software Materials as expressly granted by this Agreement.  All rights in the Software Materials not specifically granted in this Agreement are reserved by Industrial CodeBox and its licensors.

Updates to the Software Materials

2.6          The Licensee agrees to promptly apply any updates to the Software Materials which are made available from time to time by Industrial CodeBox at Industrial Codebox’s sole discretion.

Third Party EULAs

2.7          The Licensee agrees that by requesting access to any third party software or data which is subject to a Third Party EULA, the Licensee is entering into such Third Party EULA (where this is the intention of the Third Party EULA), and the Licensor will therefore have rights and remedies against the Licensee pursuant to this Agreement and the Third Party EULA. Furthermore, the Licensee agrees that where it is entering into a Third Party EULA, it will bring any claims in respect of the third party software and data which is governed by that agreement, against the Licensor pursuant to the Third Party EULA and not against Industrial CodeBox.

Beta Software

2.8          The Licensee may use Beta Software on an evaluation basis only. If any such Beta Software use is expressly permitted by Industrial CodeBox, then such software will be subject to the following additional conditions (with Clause 2.8 taking precedence over any other provision of this Agreement to the extent of any conflict or ambiguity):

2.8.1     any provisions on the Website which stipulate obligations or terms relating to the Beta Software;

2.8.2     the Licensee will not use the Beta Software for any commercial purpose whatsoever, nor within any form of live environment whereby the Licensee or a third party could suffer any form of loss from any issues with the Beta Software;

2.8.3     Industrial CodeBox will not be liable for any performance issues with such Beta Software;

2.8.4     any applicable provisions relating to the use of the Beta Software that are contained in the Third Party Contracts;

2.8.5     Industrial CodeBox may be obliged to provide details in respect of the Licensee’s evaluation use to the Licensor of the Beta Software, and the Licensee agrees to such disclosure being made by Industrial CodeBox to the respective Licensor;

2.8.6     the Licensee will permit the respective Licensors of the Beta Software to contact the Licensee for the purpose of monitoring the Licensee’s use of the Licensors’ intellectual property rights, as well as for checking compliance by the Licensee with the Third Party Contracts and for enforcing the licensors’ rights in respect of the Beta Software;

2.8.7     the Licensee will not use the Beta Software in any manner whatsoever after the expiration of any evaluation period granted by Industrial CodeBox.

2.8.8     Any assurances (including without limitation, any warranties, conditions or representations) for the benefit of the Licensee in respect of the Software expressed in the other provisions of this Agreement (being other than in Clause 2.8) shall not be applicable to the Beta Software, as the Parties agree that the Beta Software is provided on an ‘as is’ basis only.

3          Assurances

Provision of Software Materials

3.1          Industrial CodeBox agrees that:

3.1.1      

3.1.2     it will use reasonable endeavours to:

3.1.2.1 ensure that the Software Materials and Website is free of viruses;

3.1.2.2 allow access to the Website and Software Materials during the term of this Agreement, subject to any maintenance or matters outside Industrial CodeBox's reasonable control, as the Licensee acknowledges that from time to time events may occur which affect the availability of the Software Materials due to the nature of the internet, IT equipment and media;

Errors in Software

3.2          The Licensee agrees to the following:

3.2.1     that software in general is not error-free and agrees that the existence of such errors in the Software Materials shall not constitute a breach of this Agreement.

Industrial CodeBox Offering

3.3          Subject to Clauses 2.8, 3.4 and 3.5, Industrial CodeBox warrants for a period of 90 days from the date that the respective Software is made available to the Licensee (the applicable “Warranty Period”) that the Software will materially function in accordance with its Documentation. In the event that the Industrial CodeBox Offering does not function in material accordance with the Documentation, and the Licensee notifies Industrial CodeBox in writing of the non-compliance within the applicable Warranty Period, Industrial CodeBox shall use reasonable endeavours to correct and provide within a reasonable period of time by patch or new release (at its option) that part of the Industrial CodeBox Offering which does not so comply, provided that such non‑compliance has not been caused by:

3.3.1     any modification, variation, configuration or addition to the Software not performed by Industrial CodeBox;

3.3.2     incorrect use, abuse or corruption of the Software;

3.3.3     use of the Software with other software, data or on equipment with which it is incompatible;

3.3.4     any changes made to the respective third party connector or API by a party other than Industrial Codebox; or

3.3.5     the respective third party connector or API being discontinued.

If Industrial Codebox is unable to remedy the issue with the Industrial Codebox Offering or procure an update to the other Software which remedies the issue, within a reasonable period of time, then Industrial Codebox will notify the Licensee of this fact, and terminate the Agreement (in whole or in part) and refund the Licensee the licence fee paid by the Licensee in respect of such defective software.

The provisions contained in Clause 3.3 are the Licensee’s sole and exclusive financial remedy in respect of the circumstances referred to in the Clause.

3.4          The warranty in Clause 3.3 shall not apply in respect of the Beta Software.

IPR Warranty

3.5          Industrial CodeBox warrants that any software or documentation which it provides pursuant to this Agreement which it has developed itself, will not infringe any third party’s intellectual property rights.

Exclusion of Assurances not Contained in this Agreement

3.6          To the extent permitted by law, and except as expressly set out in this Agreement, Industrial CodeBox excludes all other assurances (including without limitation, warranties and conditions) with respect to the Software Materials and Support Service, including without limitation any assurances relating to satisfactory quality or fitness for any particular purpose.

Licensee Obligations

3.7          The Licensee agrees:

3.7.1     it is the Licensee’s obligation to install the Software;

3.7.2     where certain Software Materials are made available to the Licensee by Industrial CodeBox, to maintain accurate and up-to-date records of the number and location of all copies of the Software Materials, and make such records available upon request to Industrial CodeBox or the Licensors;

3.7.3     to have in place daily back-up and disaster recovery measures in respect of the systems and data with which the Software Materials is used, and effective virus prevention measures (with the Licensee being responsible for virus scanning of the Software Materials before, during and after installation and use; and the Licensee being responsible for its own virus protection measures to safeguard it against possible virus infection from use of the Software Materials);

3.7.4     to supervise and ensure use of the Software Materials in accordance with the terms of this Agreement;

3.7.5     to ensure that no third party who is not authorised by this Agreement to access the Software Materials or Support Service, is provided with such access by the Licensee (whether such access is provided deliberately or negligently);

3.7.6     to ensure that its employees, agents and other parties who are authorised by this Agreement to use the Software Materials and Support Service, are notified of and agree to the relevant provisions of this Agreement prior to such employee, agent or party using the Software Materials and Support Service;

3.7.7     to reproduce and include the copyright notice of Industrial CodeBox or such other party as may be specified in or on the Software Materials on all and any permitted copies;

3.7.8     not to undertake any act or omission, or use or otherwise make available the Software Materials in a way which would cause Industrial CodeBox to be in breach of the Third Party Licences;

3.7.9     not to undertake any act or omission, or use or otherwise make available the Software Materials in a way which would cause the Licensee to be in breach of the Third Party EULAs;

3.7.10  within 7 days after the date of termination of this Agreement, or termination of Industrial CodeBox’s obligation to make available any part of the Software Materials, for whatever reason, Licensee agrees to destroy or return the Software Materials (including all copies) in respect of which this Agreement has been terminated (in whole or in part), in the reasonable manner directed by Industrial CodeBox, and certify this in writing to Industrial CodeBox as having been completed.

Mutual Reasonable Skill and Care

3.8          Each Party agrees to use reasonable skill and care in undertaking its obligations.

4          Price and Payment

Charges

4.1          The charges (and the basis for calculation) for the Software Materials and Support Service is as referred to on the Website (as updated from time to time), or if different in an Industrial CodeBox Order Sheet.

Making Payments

4.2          All payments are due in accordance with the provisions contained on the Website, or if different in an Industrial CodeBox Order Sheet.

Variation of Charges

4.3          The Licensee acknowledges that Industrial CodeBox may vary the charges applicable pursuant to this Agreement, from time to time, due to the ability of certain of its Licensors to vary the charges to Industrial CodeBox, its customers, or its resellers, pursuant to the Third Party Licences. The Licensee agrees that once it is informed of any such increase in charges which is attributable to any change in the pricing applicable under the Third Party Licences, it will either be deemed to accept such changes in the charges if it does not reject such changes prior to the future date that the charges become effective from (the “New Charges Date”) (with it being the Licensee’s obligation to ensure that receipt of such written rejection has been received by Industrial CodeBox from the Licensee prior to the New Charges Date, in order for such rejection to be valid), or alternatively, if it rejects such varied charges prior to the New Charges Date, then Industrial CodeBox may choose to exercise its termination rights pursuant to Clause 7.

Refunds by Industrial CodeBox

4.4          Where any refunds are provided by Industrial Codebox in relation to this Agreement, such refunds shall constitute the Licensee’s sole and exclusive financial remedy in such circumstances.

Effect of Customer Purchase Orders

4.5          Where the Licensee issues a purchase order to Industrial CodeBox relating to the Software Materials, Support Service or this Agreement, the Licensee agrees that unless otherwise agreed in writing by Industrial CodeBox on Industrial CodeBox’s letter headed paper signed by a company director of Industrial CodeBox, with express reference being made in writing to this Clause 4.5, the terms of such purchase order shall not apply and such purchase order shall be accepted by Industrial CodeBox for the sole purpose of referencing a purchase order reference in any invoices in order to facilitate payment by the Licensee.

5          The Software Materials

Licensee’s Confirmation of Accuracy of Details

5.1          The Licensee confirms that all information which it provides to purchase a licence for the Software Materials and any additional information which it provides pursuant to this Agreement, will at the time it is provided (and will continue to) be accurate and complete. If the information becomes inaccurate, incomplete or misleading any time thereafter, then (without prejudice to Industrial CodeBox’s additional rights and remedies), the Licensee will promptly update Industrial Codebox accordingly, to ensure that its details remain accurate and complete.

Licensee’s Own Use Only & Audits

5.2          The Software Materials are provided solely for the Licensee’s own use pursuant to this Agreement. The Licensee is explicitly prohibited from reselling or attempting to resell, market or otherwise distribute the Software Materials or its output without the explicit written permission of Industrial CodeBox.

5.3          Industrial CodeBox reserves the right to remotely check the Licensee’s use of the Software through transmissions provided by the Software to Industrial Codebox, in order to assist the Licensee verify that the Software Materials are being used in accordance with this Agreement. Furthermore, the Licensee acknowledges, accepts and consents to the Software’s communication with Industrial CodeBox’s servers to track the usage and licence validity of the user and equipment running the Software.

5.4          The Licensee agrees to provide: reasonable access to the premises, facilities and personnel of the Licensee; and reasonable information; to allow Industrial CodeBox or the Licensors to verify that the Licensee is using the Software Materials in accordance with the provisions of this Agreement and the requirements of the Licensors. Furthermore, the Licensee acknowledges that Industrial CodeBox may need to provide information in relation to the identity of the Licensee and the Licensee’s use of the respective Software Materials and Support Service to the Licensors, as a requirement to allow the Licensee to use the Licensor’s data, software and materials. The Licensee hereby expressly consents to such disclosure by Industrial CodeBox to the Licensors pursuant to this Clause 5.4, and for the respective Licensors to contact the Licensee in relation to the Licensee’s use of the Licensor’s licensed data, software and other materials.

Technical Changes by Industrial CodeBox

5.5          Industrial CodeBox (acting reasonably) reserves the right to vary the technical specifications of the Software at any time.

Support Arrangements

5.6          Subject always to Clauses 5.7 and 5.8, Industrial CodeBox will make available the following Support Service to the Licensee:

5.6.1     Industrial CodeBox will use reasonable endeavours only to make available from time to time to the Licensee access to the user support forum at no charge. Industrial CodeBox will use reasonable endeavours only to respond to material posts about technical support issues that are made on the user support forum in connection with the Software;

5.6.2     where the Licensee has additionally paid annually upfront for support, Industrial CodeBox will for the respective 12 month support period:

5.6.2.1         make available to the Licensee, access to limited email support through which Industrial CodeBox will use reasonable endeavours to deal with technical support issues arising in connection with the Industrial CodeBox Offering; and

5.6.2.2         the Licensee will also be entitled to any updates in respect of the Industrial Codebox Offering made generally available by Industrial Codebox to its other support paying customers in the respective 12 month period.

Excluded Support

5.7     The Support Service to be provided by Industrial CodeBox shall not include the diagnosis and rectification of any issues resulting from:

5.7.1     The improper use or operation of the Software Materials or issues arising from virus infection;

5.7.2     the modification of the Software Materials or its merger (in whole or in part) with any other software;

5.7.3     the use of the Software Materials on equipment not complying with the minimum equipment requirements advised by Industrial CodeBox;

5.7.4     the failure by the Licensee to implement recommendations or solutions previously advised or made available by Industrial CodeBox;

5.7.5     the use of the Software Materials for a purpose for which it was not designed;

5.7.6     any issues with any third party software (whether or not such third party software has been supplied by Industrial CodeBox); or

5.7.7     any interaction between the Software Materials and any other software (other than QlikView).

5.8         The Support Service to be provided by Industrial CodeBox shall not include the following:

5.8.1     diagnosis or rectification of problems not associated with the Software Materials;

5.8.2     diagnosis or rectification of problems which cannot be reasonably re-created or examined by Industrial CodeBox with the Software Materials;

5.8.3     rectification or restoration of lost or corrupted data or files or software arising for any reason;

5.8.4     hardware set-up or hardware issues (including without limitation, networks, printers and PDAs);

5.8.5     assisting with any virus issues;

5.8.6     any software development or configuration work by Industrial CodeBox (except to the extent that it is undertaken by Industrial CodeBox to remedy any issues in the Software Materials);

5.8.7     any configuration or installation services in respect of the Software Materials (including in respect of any updates or releases);

5.8.8     any training (unless agreed under an Industrial CodeBox Order Sheet);

5.8.9     setting up new, or amending existing: permissions; users; accounts; or security settings (unless expressly agreed under an Industrial CodeBox Order Sheet).

6  Liability

Caveat to Limitations and Exclusions of Liability

6.1          Nothing in this Agreement shall limit or exclude Industrial CodeBox’s liability for: death; personal injury; fraud; fraudulent misrepresentation; and any liability which may not be lawfully limited or excluded.

Exclusions

6.2          Subject to Clause 6.1, Industrial CodeBox shall not be liable in any circumstances to the Licensee for consequential, special, incidental or indirect losses, or the following losses whether direct, consequential, special, incidental or indirect losses: loss of profits; loss of revenue; loss of turnover; loss of sales; economic loss; loss of business or contracts; loss of anticipated savings or goodwill; loss of software or data; (or any losses arising from a claim by a third party for any of the afore-mentioned losses); whether such losses arise under contract, statute, tort (including without limitation, negligence), or otherwise. However, Clauses 6.2 and 6.4, do not operate to negate any express refund obligations explicitly stated to be accepted by Industrial CodeBox in the Agreement.

6.3          The Licensee accepts that Industrial Codebox has no control over any third party APIs (application programming interfaces) nor any third party data, and therefore the Licensee agrees that Industrial Codebox will have no liability in relation any issues arising in respect of such APIs or data (including without limitation, where any third party changes their APIs or data structure, so that the Software no longer functions as a result of such third party changes, or where any third party APIs or connectors are changed or discontinued by the respective third parties). This Clause operates subject to Clause 6.1.

Liability Limits

6.4          Subject to Clauses 4.4, 6.1 and 6.2, the aggregate liability of Industrial CodeBox for all claims arising under or in connection with this Agreement (whether arising under contract (including without limitation in relation to any deliberate repudiatory and fundamental breaches), statute, tort (including without limitation, negligence), or otherwise) shall be limited as follows in respect of the issues for which Industrial CodeBox is found liable:

6.4.1     in respect of the totality of all issues with the Software Materials and the Support Services and any other services agreed to be provided by Industrial Codebox pursuant to, or in relation to, this Agreement (the “Additional Services”), where the causes giving rise to the liability on the part of Industrial CodeBox occur within a particular Year, to a total aggregate amount of:

6.4.1.1         that respective Year’s charges paid by the Licensee to Industrial CodeBox in respect of the relevant software forming part of the Software Materials in respect of any issues with the relevant software; so by way of example, if there is an issue with a connector produced and marketed by Industrial Codebox, then the liability under this Clause 6.4.1.1 would equate to the licence fee paid by the Licensee for such connector;

6.4.1.2         that respective Year’s charges paid by the Licensee to Industrial CodeBox in respect of the relevant Support Service in respect of any issues with the relevant Support Service (if the Support Service issue is not in respect of a chargeable Support Service, then the respective issue will be deemed to be an issue with the respective Software, and therefore fall within the scope of Clause 6.4.1.1);

6.4.1.3         that respective Year’s charges paid by the Licensee to Industrial CodeBox in respect of the relevant Additional Services in respect of any issues with the relevant Additional Services;

6.4.2     in respect of the totality of all liability (where such liability is not one which falls within the scope of Clause 6.1) for collectively all other issues arising under or in connection with this Agreement, which are not limited by Clause 6.4.1, to the aggregate amount of £1,000 (the “Additional Liability Cap”).

6.5          The limits of liability in clauses 6.4.1.1, 6.4.1.2 and 6.4.1.3 each form a separate “Liability Cap”, with such Liability Cap limiting Industrial CodeBox’s collective liability for the totality of all such issues within that Year (and for the avoidance of doubt, if there are two issues within a Year, then the aggregate liability of Industrial CodeBox arising in respect of such 2 issues collectively, would equate to 100% of the charges paid in that respective Year and not 200% of the charges paid in that respective Year).

Licensee’s Acknowledgment

6.6          The Licensee acknowledges that the charges for the Software Materials and the Support Service and Additional Services have been calculated on the basis that Industrial CodeBox will exclude and limit its liability as set out in this Agreement, and that the limitations and exclusions of liability in this Agreement are therefore reasonable.

6.7          Notwithstanding any provision to the contrary (but subject to Clause 6.1): the exclusions of liability in Clause 6 prevail; and Industrial CodeBox’s liability under or in connection with this Agreement will not exceed the limits referred to in Clause 6.

Limitation Time Period

6.8          The Parties agree that Industrial CodeBox shall not be held liable for any liability in respect of events occurring during the term of this Agreement, where the respective claim is not brought through legal proceedings against Industrial CodeBox within 6 months following the earlier of: (1) when the event giving rise to the cause of action arose; and (2) termination of the Agreement.

Consequences for Exhaustion of Liability Limits

6.9          The Parties agree that either Party may terminate the Agreement for convenience (rather than cause) if any Liability Cap or Additional Liability Cap becomes exhausted by the Licensee successfully bringing claims against Industrial CodeBox (which are determined by a Court, or agreed between the Parties, as owing) for at least the total amount of the respective Liability Cap or the Additional Liability Cap. For the avoidance of doubt, the Parties agree that Industrial Codebox will not be liable for any additional losses or liability to the Licensee as a result of such termination.

Licensee’s Indemnity

6.10       The Licensee agrees that it will indemnify and keep indemnified Industrial CodeBox and the Licensors against all damages, losses, costs and expenses (including without limitation legal fees on an indemnity basis); whether any claim made against, or loss incurred or suffered by, Industrial CodeBox and/or the Licensors is wholly or in part attributable directly or indirectly to the Licensee breaching the provisions of this Agreement or the Third Party Contracts. Furthermore, the Licensee agrees that if Industrial CodeBox is required to pay any sums to any third party as a result of the Licensee breaching the Agreement or the Third Party Contracts, then the Licensee will, immediately upon notice, reimburse Industrial CodeBox in full with the amount which Industrial CodeBox has had to pay to such third party as a result.

7  Term and Termination

Duration

7.1          The Agreement will continue in force until it is terminated in accordance with the provisions of the Agreement.

7.2          Any licences granted pursuant to the Agreement for use of the Software Materials will be valid for the shorter of the following respective periods:

7.2.1     the Licence Period; or

7.2.2     the termination of the Agreement in whole (or in part, and in such circumstances where it relates to the respective licence).

Termination by Industrial CodeBox

7.3          Industrial CodeBox will have the right to terminate this Agreement (in whole or in part) immediately upon notice if the Licensee fails to comply with any provision of this Agreement (such termination of the Agreement in such circumstances will not entitle the Licensee to any refund).  Upon any termination, the Licensee must return or destroy the Software Materials in its possession, together with all copies, in the reasonable manner stipulated by Industrial CodeBox.

7.4          Industrial CodeBox may terminate the Agreement (in whole or in part) immediately upon notice to the Licensee at any time, if:

7.4.1     Industrial CodeBox is no longer able to make available the Support Service or Software Materials (in whole or in part) due to the acts or omissions of the Licensors;

7.4.2     any of the Third Party Contracts terminate for any reason;

7.4.3     the Licensors vary their terms and conditions, requirements, or pricing in a manner which adversely affects Industrial CodeBox or the Licensee; or

7.4.4     a Licensor claims that the use of the Software Materials in the manner in which they are being used by Industrial CodeBox or the Licensee is not permitted.

7.5          Industrial CodeBox may terminate the Agreement for convenience on 7 days notice to the Licensee at any time, and in such event, Industrial CodeBox will provide a pro-rata refund in accordance with Clause 7.12.

7.6          Industrial CodeBox may terminate the Agreement in whole or in part for convenience at any time upon written notice (with such termination being effective on the date specified in the respective notice), where such termination is necessary for Industrial CodeBox to comply with the Third Party Licences.

7.7          Either Party (the “Terminating Party”) may terminate the Agreement immediately by notice to the other Party (the “Defaulting Party”) if:

7.7.1     the Defaulting Party is unable to pay its debts as they fall due or otherwise becomes insolvent, or if a receiver or an administrative receiver is appointed over any or all of the assets of the Defaulting Party, or if any arrangement, compromise or composition of the Defaulting Party’s debts is proposed or made by the Defaulting Party, or if the Defaulting Party enters or is entered into any proceedings for administration or liquidation or otherwise becomes subject to dissolution proceedings, or if any analogous event occurs in any other jurisdiction in which the Licensee carries out its business;

7.7.2     the Defaulting Party brings the Terminating Party into disrepute (or where the Licensee brings any of the Licensors into disrepute, then Industrial CodeBox may also terminate the Agreement pursuant to this Clause as well).

7.8          The respective Third Party EULA will automatically terminate with immediate effect if the corresponding Third Party Licence is terminated, and consequently the respective part of this Agreement will also automatically terminate immediately. Industrial CodeBox will provide prompt notice of such event to the Licensee, and the Licensee acknowledges that in such circumstances Industrial CodeBox will no longer be able to make available to the Licensee the Support Service or the Software Materials which were subject to the Third Party Licence and Third Party EULA.

Termination by the Licensee

7.9          The Licensee may terminate the Agreement with immediate effect, if Industrial CodeBox is in material breach of this Agreement (however, where such breach is capable of remedy, the Licensee must provide Industrial CodeBox with at least 30 days written notice (with express written reference to its right to terminate the Agreement pursuant to this Clause) allowing Industrial CodeBox to remedy the breach, and only if Industrial CodeBox does not remedy the breach within this time period, may the Licensee terminate the Agreement).

Consequences of Termination

7.10       Subject to Clause 6.9, termination of the Agreement is without prejudice to both Parties’ rights and remedies.

7.11       The provisions of this Agreement which are expressed to, or intended to, survive termination, shall continue in full force and effect.

Refunds on Termination

7.12       Where the Agreement is terminated in whole or in part by Industrial CodeBox or as a result of the actions of the Licensors, (other than directly or indirectly as a result of the wrongful acts or omissions of the Licensee), or the Agreement is terminated by the Licensee pursuant to Clause 7.7, 7.9 or by either Party pursuant to Clause 8.2, then the Licensee will be entitled to a pro-rata refund of any prepaid charges paid to Industrial CodeBox by the Licensee in respect of the Software Materials which it is no longer able to use for the pre-paid period, with such payment being calculated and determined by Industrial CodeBox in its sole discretion (with Industrial CodeBox acting reasonably). The Licensee agrees that this is the sole and exclusive financial remedy of the Licensee in such circumstances.

8  Force Majeure

8.1          If either Party is prevented from complying with its obligations due to any event beyond its reasonable control (such event being referred to as a “Force Majeure Event”) (including without limitation, any issues arising from the data, software or documentation supplied by the Licensors), it shall not be in breach of this Agreement or otherwise liable to the other Party by reason of any delay in performance or non-performance of any of its obligations due to such events. However, this Clause does not excuse the Licensee from complying with its payment obligations, nor from compliance with the Third Party Contracts, by itself claiming the benefit of a Force Majeure Event.

8.2          If a Force Majeure Event continues for a period of more than 14 consecutive days, then either Party may terminate the Agreement for convenience during the continuance of such Force Majeure Event. In such circumstances, subject to Clause 7.12, both Parties acknowledge that there will be no compensation due from either Party to the other for termination in such circumstances.

9  Assignment and Sub-contracting

9.1          The Licensee may not assign this Agreement (whether in whole or in part) without the prior written consent of Industrial CodeBox.

9.2          Industrial CodeBox may subcontract and assign any or all of its obligations and rights pursuant to this Agreement, without requiring the prior consent of the Licensee.

10       3rd Parties & Contracts (Rights of Third Parties) Act 1999

10.1       The Licensors shall have the right to enforce the provisions of this Agreement which are for their benefit, by virtue of section 1 of the Contracts (Rights of Third Parties) Act 1999.  No other third party shall have the right to enforce any term of this Agreement.

10.2       The Parties may, notwithstanding section 2(1) of the Contracts (Rights of Third Parties) Act 1999, vary or terminate this Agreement (in whole or in part) without requiring the consent of the Licensors or any other third parties.

11       Variations

11.1       No variation of this Agreement shall be effective unless it is in writing and is signed by an authorised representative of each Party, although any pricing arrangements tailored to the Licensee may be expressly agreed by Industrial CodeBox by email.

12       Severability

12.1       If at any time any part of this Agreement becomes void or unenforceable under any applicable law it shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue unaffected. In such circumstances, the Parties will use reasonable endeavours to substitute the omitted provision with a valid replacement which achieves to the closest extent reasonably and lawfully possible, the intention of the omitted provision.

13       Waiver

13.1       No provision of the Agreement shall be waived unless agreed to be waived by both Parties in writing (however, where a right must be exercised within a specified time period, then that right will be waived if it is not exercised within such time period). If any provision is waived, then that waiver shall operate for that instance only and not future instances, unless agreed otherwise by both Parties in writing.

14       Entire Agreement

14.1       This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement (the “Subject Matter”) and supersedes and replaces all other written and oral communications between the Parties relating to the Subject Matter.  Except for the express provisions in this Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations (whether made innocently or negligently), statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law. Each Party excludes its liability for any representations (whether made innocently or negligently) not contained expressly within this Agreement. The Parties hereby confirm that they have not relied upon any representations (whether made innocently or negligently), communications or other matters which have not been expressly stated in this Agreement, whether as an inducement to enter into this Agreement or otherwise. Each Party agrees that its only liability in respect of those representations (whether made innocently or negligently), warranties and provisions that are set out in this Agreement shall be for breach of contract. This Clause 14.1 operates subject to Clauses 14.2 and 14.3.

14.2       Notwithstanding any provision to the contrary in this Agreement, all implied: terms, conditions and warranties, (including without limitation those relating to satisfactory quality and fitness for purpose); whether (1) implied by statute, common law, custom, usage or otherwise, or (2) otherwise sought to be expressly incorporated (including without limitation where sought to be incorporated by any express provision of this Agreement) are hereby excluded to the maximum extent permitted by law. This Clause 14.2 operates subject to Clause 14.3.

14.3       Notwithstanding any provision to the contrary, nothing in this Agreement limits or excludes either Party’s liability for fraudulent misrepresentations.

15       Law and Jurisdiction

15.1       This Agreement and any dispute or claim arising in connection with it shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English Courts to which the Parties irrevocably submit.

16       Notices

Notices

16.1       Any notices to Industrial CodeBox in relation to this Agreement, must be sent in writing to Industrial CodeBox, The Oakley, Kidderminster Road, Droitwich Spa, Worcs, WR9 9AY or by e-mail to email@industrialcodebox.com. Notices will only be validly served pursuant to this Agreement by the Licensee, where the notice has been sent by tracked delivery (which can reasonably demonstrate that the notice was received by Industrial CodeBox) or where receipt of the notice is acknowledged in writing by Industrial CodeBox.