1. Definitions

1.1 Unless the context otherwise requires:

“Copy” means any direct or indirect copy or reproduction of, or of any part of, the Software or the Documentation in any man- or machine-readable form whatever, which is produced by or for Customer (and so that any direct or indirect copy or reproduction of any, or of any part of any Copy shall also constitute a Copy for the purposes of the licence agreement);

“Customer” means the owner of the Equipment on which the software is being used for the purpose of contributing to the operation of the Customer’s business;

“Documentation” means all documents supplied by Manufacturer to Customer whether before or after the date of the licence agreement containing information relating to the Software, and all updates and further copies of such documents so supplied from time to time to Customer;

“Equipment” means the equipment on which the Software is being used as specified by the Customer which conforms to the requirements stipulated in the Documentation and (if that equipment ceases to be available for use by reason of malfunction) any substitute equipment on which the Software is used during the period of such malfunction by the Customer with Manufacturer’s prior consent (not to be withheld unreasonably);

“Licence” means the license of the Software to Customer contained in the licence agreement and all the terms of the agreement applying to that licence;

“Manufacturer” means the supplier of the Software and Documentation i.e. NDL Software Limited.

“Software” means the computer program(s) issued by the Manufacturer together with any subsequent releases or updates of such program(s) from time to time supplied by Manufacturer to Customer;

“Warranties” means Customer’s rights under Clause 6;

“Warranty Period” means, in relation to any Software or Documentation, the period of 90 days starting on the date of its delivery to the Customer where the Licence is in perpetuity. Where the Licence is an annual licence, the Warranty Period is that time from delivery until the licence is terminated by either party

1.2 Unless the context requires otherwise, references to the singular include the plural and vice versa, references to any gender include each other gender, references to persons include individuals, bodies corporate, unincorporated associations, partnerships and other legal entities, and references to Clauses are to provisions of the licence agreement.

2. Object Code Licence

Manufacturer hereby grants to Customer a non-exclusive and non-assignable licence to use the Software in the course of its business on the Equipment subject to the terms of the licence agreement.

3. Documentation and Software

3.1 Customer shall use the Documentation and the information it contains only for the purposes of operating the Software as permitted under the licence agreement. Further copies of the Documentation may be ordered from Manufacturer while it remains on Manufacturer’s current product list at Manufacturer’s standard price from time to time.

3.2 Customer shall have the right to make up to two Copies of the Software to be used for safe keeping and back-up purposes. Such Copies shall show the name and version number of, and shall retain any proprietary notices contained in, the Software, and title to such Copies shall vest automatically in Manufacturer when the same come into existence. The provisions of the licence agreement shall apply to such Copies as they apply to the Software.

3.3 Customer shall have no right to make any modification or alteration to the Software and shall do nothing in respect of the Software which is not expressly permitted in the licence agreement except with Manufacturer’s prior written consent.

3.4 None of the Customer’s rights under the licence agreement (including in particular the Licence) may be assigned, mortgaged, charged, exercised by others or otherwise disposed of and Customer is not entitled to grant any sub-licence or consent to any third party to exercise any of these rights without prior agreement with the Manufacturer.

4. Protection and Security

4.1 Customer acknowledges that all copyright, patent and other intellectual property rights in respect of the Software, the Documentation and all Copies, remain the sole and exclusive property of Manufacturer as between Customer and Manufacturer subject only to the Licence.

4.2 Customer agrees that without prejudice to the requirements of the Freedom of Information Act, 2000 and in particular without prejudice to sections 41 and 43 of the Act, the Customer and the Manufacturer accept that any information of a confidential nature supplied by either party in connection with this contract shall not be disclosed to a third party without the consent of the other party except to such extent as may be necessary, on a need –to-know basis, in connection with this Contract, and that the customer will keep, and will ensure that its relevant employees and contractors keep, the Software, the Documentation and all Copies, together with all information they contain, strictly confidential and in its possession and:

(i) will take all reasonable precautions to ensure that no unauthorised person may remove the Software or the Documentation or a Copy from the site on which it is in use;

(ii) will not use any of them for any purpose save as authorised by the licence agreement;

(iii) will not disclose any of them to anyone, save only that Customer may disclose them to those of its employees and contractors as need to receive them for the purposes of exercising any of the rights granted to Customer in the licence agreement;

(iv) will notify those of its employees and contractors referred to in Clause 4.2 (iii) of the provisions of this Clause 4 and ensure that they comply with its terms and will inform Manufacturer as soon as reasonably practicable after it becomes aware of any breach of those terms or other use of the Software or Documentation or any Copy not authorised by Manufacturer;

(v) will not remove, obscure or omit any proprietary or similar notices or statements included on the Software.

4.3 Customer acknowledges that Manufacturer may gather data on usage and for diagnostic purposes via Google Fabric.io through a service provided by Google Inc. who will be the Data Processor. This information is limited to the use of the Manufacturers software components and Manufacturer will not gather any information of a personally identifiable nature or have access to data from within customer created applications. Further information on Fabric.io and Google’s privacy statement can be found at: https://docs.fabric.io/android/fabric/data-privacy.html

4.4 Customer agrees to notify Manufacturer in writing on request with details and evidence of the location of the Software and all Copies.

4.5 Customer agrees to keep Manufacturer indemnified against all costs, expenses, losses, claims and demands whatever directly suffered or incurred by it in connection with any breach by Customer of its obligations in respect of the Software. In particular, (but without limitation) in the event that a third party makes any unauthorised use of any Software or Documentation or any Copy and such use results from any such breach then (without prejudice to any other rights or remedies the Manufacturer may have), Customer will pay Manufacturer on demand an amount equal to the fees which would have been payable if Manufacturer had licensed such Software, Documentation or Copy to that third party at the start of the unauthorized use on Manufacturer’s standard terms and at its standard rates applicable at the time. Manufacturer’s certificate as to such amount shall be conclusive and binding in the absence of fraud.

4.6 The obligations of the Customer under this Clause 4 shall remain in force notwithstanding termination of the agreement or the Licence, however arising.

5. Patent and Copyright indemnity

5.1 Manufacturer agrees to indemnify Customer against any legal and other professional expenses it may reasonably incur in defending any proceedings brought against it in respect of a claim that Customer’s use of the Software or Document in accordance with the licence agreement infringes any United Kingdom patent or any right of copyright under English law, and agrees that it will pay any costs and damages which are awarded in or agreed in settlement of such proceedings, in each case subject to and conditional upon compliance by Customer with the following conditions:

(i) Customer will promptly give Manufacturer notice of full details of any such claim or threatened claim of which it is aware and of the commencement of any such proceedings;

(ii) Customer will in all respects compromise, contest, admit or appeal any such claim and any adjudication relating to it as Manufacturer shall direct but not otherwise; and

(iii) Manufacturer shall have no liability under this Clause 5.1 in respect of the settlement of any claim unless the terms of that settlement shall have been previously approved in writing by Manufacturer.

5.2 In the event that the Software or the Documentation becomes or is reasonably expected by Manufacturer to become the subject of a claim for infringement of any such patent or copyright as is mentioned in Clause 5.1, then Manufacturer shall at its option:

(i) procure the right for Customer to continue using the relevant item; or

(ii) replace or modify the item to make it non-infringing, so long as any replacement or modification shall be compatible with and in all material respects equivalent or superior to the original item (and so that Customer shall use any such replacement or modification as from the date when the same is supplied to Customer in substitution for the original item).

5.3 This Clause 5 sets out Manufacturer’s entire liability, under the licence agreement, or otherwise, in respect of the claims and proceedings to which it refers.

6. Warranty

6.1 Manufacturer warrants to Customer that it will, with reasonable promptness, correct any non-compliance in the current version of the Software and/or Documentation against Manufacturer’s published specification for them, which materially affects their respective use and operation, either by amending them or by replacing them with Software or Documentation (as the case may be) equivalent in all material respects.

6.2 As a precondition to Manufacturer’s obligations under Clause 6.1 Customer shall:

(i) give Manufacturer written notice in reasonable detail referring to this Clause 6 before the end of the applicable Warranty Period of the non-compliance concerned;

(ii) return any Software or Documentation or associated data which is the subject of a claim under Clause 6.1 to Manufacturer at Manufacturer’s request and expense; and

(iii) give Manufacturer, free of charge, all access to the Equipment and other assistance as Manufacturer may reasonably require to investigate the claim.

6.3 Manufacturer further warrants that it will replace, on an exchange basis, the medium on which any Software is incorporated if such medium is proved to be defective on delivery to Customer subject to the relevant item being returned to Manufacturer, at Manufacturer’s expense, within 10 days of delivery to Customer.

6.4 Manufacturer shall be entitled to charge Customer at its standard rates applicable at the time for any costs incurred or work done pursuant to a claim under Clause 6.1 or 6.3 which does not come within the scope of the relevant Clause.

6.5 This Clause 6 shall apply to the medium onto which any Software is incorporated which has been re-supplied under it as it did to the original medium and to any Software or Documentation re-supplied under it for the unexpired period of the Warranty Period relating to the original Software or Documentation.

6.6 This Clause 6 contains all the warranties, representations and other commitments on the part of Manufacturer in relation to the rights to be provided by it under the licence agreement, and replace and cancel all other commitments and obligations in contract or tort, express or implied, or of any other kind. In particular:

(i) any statements in promotional or other literature or brochures do not give rise to legal liabilities save to the extent incorporated in the licence agreement expressly or by reference;

(ii) Customer accepts that it is solely responsible for evaluating the suitability of the Software and Documentation for Customer’s purposes, and their compatibility with other equipment or services used by Customer.

6.7 Manufacturer shall have no liability or obligation under any of the Warranties in respect of any Software or Documentation to the extent that it could have been reduced or avoided by the Customer using a later release of the item concerned and which had been supplied to it, whether free or for a charge.

7. Remedies of Customer

7.1 The rights and remedies of Customer set out in the licence agreement are exclusive of any other rights and remedies at law or in equity, save as set out below.

7.2 Manufacturer does not seek to exclude or limit any liability it may have to Customer for death or personal injury caused by negligence.

7.3 Manufacturer shall have no liability for any breach of any of its obligations under the Warranties unless it has failed substantially to remedy the same within 30 days following written notice from Customer to Manufacturer specifying the breach, referring to this Clause 7.3 and given within 30 days of the occurrence of the breach.

7.4 Any liability Manufacturer may have, to pay any damages or other sums to Customer, either for breach of its obligations under Clause 6 or (notwithstanding and without prejudice to the provisions of the licence agreement) in contract or tort or any other way, however arising, other than damages coming within Clause 7.2, shall be limited to amounts which in aggregate do not exceed the price paid by the Customer for the Software Licence and shall not extend to damages or other sums in respect of claims for anticipated profits or revenues or loss of business or goodwill or claims by third parties or other consequential or indirect losses however caused.

7.5 Customer recognises that Manufacturer is willing to negotiate acceptance by it of greater liability than is provided for in the licence agreement subject to an appropriate adjustment to the sums payable to it, and that Customer is best able to seek insurance for, or otherwise evaluate and manage, those areas in respect of which no liability is accepted by Manufacturer under the licence agreement.

7.6 Customer shall ensure that no employee, licensee or customer of Customer makes any claim against Manufacturer in respect of any matter to which the licence agreement relates save to the extent that Manufacturer has a liability or obligation in respect of that matter under the terms of the licence agreement.

8. Term

8.1 The Licence shall terminate forthwith in the event of any breach by Customer of any of its material obligations under the licence agreement. Such termination to be without prejudice to any other rights Manufacturer may have in respect of such breach.

9. General

9.1 Manufacturer shall not be liable to Customer and shall not be or deemed to be in default by reason solely of any delay or failure in its performance under the licence agreement resulting from causes beyond its reasonable control (including with limitation, employee disputes, failure of contractors and suppliers, transportation difficulties and government action) provided that Manufacturer has used all reasonable efforts to mitigate their consequences.

9.2 If any term of the licence agreement is illegal or unenforceable for any purpose then the other provisions shall remain in full force and effect and the licence agreement shall be read and construed for such purpose as if such term had not been included herein. Manufacturer and the Customer shall agree in good faith a replacement provision as closely equivalent as possible which is legal and enforceable.

9.3 Each of Manufacturer’s rights under the licence agreement is additional to any other rights it may have under the licence agreement or by statute, common law or otherwise. An effective waiver by Manufacturer of any of its rights under the licence agreement shall not constitute waiver of any other right. To be effective, a waiver must be in writing specifying the right so waived and signed by a director of Manufacturer and, (in particular) delay by Manufacturer in enforcing any of its rights shall not constitute a waiver of that or any other right or of any other breach of that right nor otherwise prevent Manufacturer from enforcing them, and exercise of any right shall not prevent exercise of any other right in respect of the same or any other matter.

9.4 Manufacturer shall be entitled to assign all or any of its rights and/or obligations hereunder and references to Manufacturer shall be deemed to include its successors and assigns.

9.5 The headings to the licence agreement are for convenience only and shall not be taken into account in construing it.

9.6 All notices to be given under the licence agreement shall be in writing and shall be duly served if delivered personally or sent by recorded delivery post to the other party at its address specified above or at such other address as it may have notified for the purpose to the other party. Notices to Manufacturer shall be marked “Attention Company Secretary”.

9.7 The licence agreement shall be governed by and construed in accordance with the laws of England and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English courts in respect of any matter or dispute arising in connection herewith.

SLIC 12/17