Software Licence Agreement

This Licence Agreement (licence) sets out the terms on which SOMNIUM Technologies Limited (incorporated and registered in England and Wales with company number 07590596) whose registered office is at Riverside Court, Beaufort Park, Chepstow, Gwent NP16 5UH (SOMNIUM) will license the use of the Software to the Customer.

You acknowledge and accept that by clicking the 'I accept' or 'install' button, you indicate that you accept the terms of the licence and that you are authorised to bind your company, corporation or other business entity to the terms of this licence. This Software must not be installed unless the Customer intends to be bound by the terms of this licence. The Software is intended for business use only and may not be downloaded or used for non-business use.


1 Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this licence.

Commencement Date:

the date on which the Software is first installed and the license activated by the Customer.

Customer:

the company, corporation or other business entity on behalf of which this licence is accepted or, if none, the individual accepting this licence.

Excluded Use:

the uses of the Software for the applicable Licence Type which are not permitted.

Fees:

the fees for the licensing of the Software and for the provision of Support in accordance with the Licence Type.

Intellectual Property Rights:

patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, rights in designs, rights in computer software, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Licence Type:

the type of licence under which the Software is licensed to the Customer, having the rights and restrictions set out in the Schedule.

Open-Source Software:

open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).

Open-Source Software Licences:

the licences under which the Open-Source Software is distributed.

Portal:

SOMNIUM's web portal, which sets out information relevant to the Software and to this license and on which the Customer may access Support.

Software:

the SOMNIUM DRT software supplied to the Customer under this licence.

Specification:

the specification of the Software set out on the Portal.

Supplementary Licence Terms:

the additional licence terms set out in the Schedule.

Support:

the support to be provided by SOMNIUM in relation to the Software for the relevant Licence Type, accessible on the Portal, as set out in the Schedule.

Support Period:

the period for which Support is provided for the relevant Licence Type, as set out in the Schedule.

Support Terms:

the terms and conditions for the provision of Support, available on the Portal.

Term:

the duration of this licence set out in the Schedule for the applicable License Type.

Third Party Licences:

the licences under which third parties have licensed the use of Third Party Software.

Third Party Software:

the software licensed to SOMNIUM by third parties for use in or with the Software (excepting the Open-Source Software).

User:

an individual user authorised by the Customer to use the Software in accordance with this licence.

1.2 Holding company and subsidiary mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006.

1.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.4 Unless the context otherwise requires:

1.4.1 words in the singular shall include the plural and in the plural shall include the singular;

1.4.2 a person includes a corporate or unincorporated body;

1.4.3 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and

1.4.4 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.


2 Licence

2.1 In consideration of the terms of this licence, SOMNIUM grants to the Customer a non-exclusive licence to use the Software in accordance with the Licence Type.

2.2 The Customer shall only use the Software in accordance with the provisions of this clause 2 and shall in no circumstances use the Software for any Excluded Use applicable to the appropriate Licence Type.

2.3 The Customer may make as many backup copies of the Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.

2.4 Except as expressly stated in this clause 2, the Customer has no right (and shall not permit any party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.

2.5 The Customer may not use any information provided by SOMNIUM to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright or other right subsisting in it.

2.6 The Customer shall not:

2.6.1 sub-license, assign or novate the benefit or burden of this licence in whole or in part;

2.6.2 delete, remove or obscure any trade or service mark, company name or copyright notice from or on the Software;

2.6.3 allow the Software to become the subject of any charge, lien or encumbrance;

2.6.4 share with any third party or publish the results of any benchmarking or comparison testing relating to the Software without SOMNIUM’s prior written consent; or

2.6.5 deal in any other manner with any or all of its rights and obligations under this licence.

2.7 In relation to the elements of the Software to which the Open-Source Licences apply (but not otherwise or further), the Customer shall have the rights set out in the applicable Open-Source Licence.

2.8 The Customer shall:

2.8.1 keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to SOMNIUM on request from time to time; and

2.8.2 notify SOMNIUM as soon as it becomes aware of any unauthorized use of the Software by any person.

2.9 If not prohibited by the Licence Type, the Customer shall be permitted to use subcontractors to exercise its rights under this clause 2 provided that it shall ensure that such subcontractors are bound by obligations of confidentiality no less stringent than those set out in this licence and the Customer shall remain liable for any breach of this licence by, or acts or omissions in relation to the Software of, the subcontractors.

2.10 The Customer shall permit SOMNIUM to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that SOMNIUM provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

2.11 The Software will automatically send certain usage data to SOMNIUM, including order identification, license type, the dates and times on which the Software started and stopped execution and which specific features of the Software have been used. The information will not include personal data or any data by which an individual can be identified, nor will it include any data which is proprietary or confidential to the Customer. SOMNIUM may use this data for analysis of usage, developing its products and services, and for the provision of support. This feature may be disabled by the Customer where the License Type held by the Customer is a Fixed License or Floating License, but not otherwise.

2.12 The Customer may obtain access to source code required to be made available under the related Open-Source Software Licence by contacting SOMNIUM at the following email address: download@somniumtech.com.

2.13 The Customer shall comply with the Supplementary Licence Terms.


3 Support

3.1 SOMNIUM shall provide the Support for the Support Period and otherwise as set out in the Schedule for the applicable Licence Type on the basis of, and subject to the Support Terms, which the Customer hereby accepts.

3.2 The Customer may renew the Support Period for subsequent periods subject to, and in accordance with, the Support Terms.

3.3 Depending on the License Type, the Customer may be entitled to purchase enhanced support by visiting the Portal. Separate terms and conditions shall apply to enhanced support.


4 Fees

4.1 The Customer shall pay the Fees (if any) applicable to the applicable License Type to SOMNIUM either by means of SOMNIUM's online payment process or by such other method as is agreed with SOMNIUM.

4.2 Where the Customer pays the Fees by means of the online payment process or other instant payment method, it shall be permitted to download the Software as soon as practicable.

4.3 Where the Customer wishes to issue a purchase order for the Fees, SOMNIUM shall permit the Customer to download or activate the Software on acceptance of the purchase order by SOMNIUM (in its discretion) and the Customer shall make payment within 30 days of the date of SOMNIUM's invoice for the Fees.

4.4 SOMNIUM shall be entitled to suspend and/or terminate (at its discretion and without liability) the Customer's use of the Software at any time that any Fees remain unpaid after their due date for payment.

4.5 The Fees shall be inclusive of VAT or relevant local sales tax (if any). Where the Customer makes payment of the Fees by means of SOMNIUM's online payment process, the Customer warrants that it has fully and accurately completed all of the fields set out in the process.

4.6 If the Customer fails to make any payment due to SOMNIUM under this licence by the due date for payment, then, without limiting SOMNIUM's remedies under clause 10, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

5 Confidentiality and publicity

5.1 Each party shall, during the Term and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this 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 trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, 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.

5.2 No party shall make, or permit any person to make, any public announcement concerning this licence without the prior written consent of the other party, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.


6 Export

6.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this licence (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

6.2 Each party undertakes if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.


7 Supplier's warranties

7.1 Unless the Software is marked as, or provided in, pre-release form or for the purposes of evaluation only, the Supplier warrants that the Software will for a period of 90 days substantially conform with its Specification. Where the Software is marked as, or provided in, pre-release or beta form or for the purposes of evaluation only, the Software is provided on an 'as is' basis.

7.2 SOMNIUM does not warrant that:

7.2.1 the use of the Software will be uninterrupted or error-free; or

7.2.2 the Software will operate with, or in conjunction with, any hardware or software not expressly identified as compatible in the Specification

7.3 Open-Source Software and Third Party Software provided by SOMNIUM may be used in accordance with the terms and conditions of the specific Open-Source Software Licence or Third Party License (as the case may be), and any Supplementary Licence Terms, but is provided "as is".

7.4 Except as expressly set out in this licence, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law.


8 Limits of liability

8.1 Except as expressly stated in clause 8.2:

8.1.1 SOMNIUM shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), 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:

(a) special damage, even if SOMNIUM was aware of the circumstances in which such special damage could arise;

(b) loss of profits;

(c) loss of anticipated savings;

(d) loss of business opportunity;

(e) loss of goodwill; or

(f) loss or corruption of data; and

8.1.2 the total liability of SOMNIUM, whether in contract, tort (including negligence) or otherwise in connection with this licence or the Software, shall in no circumstances exceed £1,000.

8.2 SOMNIUM does not exclude liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any other liability which may not be excluded by law.

8.3 SOMNIUM shall have no liability whatsoever, whether in contract, tort (including negligence) or otherwise in respect of any Software provided for which no Fees are paid or payable.

8.4 SOMNIUM makes no warranty that the Software is suitable for use in relation to any particular product and shall have no liability therefor. The Customer is responsible for compliance with all legal, regulatory, safety, and security related requirements concerning its products, regardless of any software, information or support that may be provided by SOMNIUM. Accordingly, the Customer will indemnify and hold SOMNIUM harmless from any claims, liabilities, damages and associated costs and expenses (including attorneys’ fees) that SOMNIUM may incur related to any use of the Software for any specific purpose, including in a safety-critical application or system.

8.5 Subject to any Supplementary License Terms set out in the Schedule, SOMNIUM warrants and represents that it has full authority to license or sub-license the Third-Party Software to the Customer on the terms of this licence.

8.6 The Customer shall comply with the Third-Party Licences and the Open-Source Software Licences and shall indemnify and hold SOMNIUM harmless against any loss or damage which it may suffer or incur as a result of the Customer's breach of such terms howsoever arising.

8.7 SOMNIUM may treat the Customer's breach of any Third-Party Licence or Open-Source Software Licence as a breach of this licence.


9 Intellectual property rights

9.1 As between the Customer and SOMNIUM, the Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to SOMNIUM, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.

9.2 'SOMNIUM' and the SOMNIUM logo are registered trademarks of SOMNIUM Technologies Limited.


10 Term and termination

10.1 This licence shall commence on the Commencement Date and continue for the Term, unless and until terminated in accordance with this clause 10.

10.2 Without affecting any other right or remedy available to it, either party may terminate this licence with immediate effect by giving written notice to the other party if:

10.2.1 the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

10.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

10.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;

10.2.4 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

10.2.5 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

10.2.6 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

10.2.7 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2.2 to clause 10.2.6 (inclusive);

10.2.8 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

10.3 SOMNIUM may terminate this licence with immediate effect if any material Third Party Licence or Open-Source Software Licence is terminated or expires, and SOMNIUM is unable to agree commercially reasonable terms to continue to use such Third Party Software or Open-Source Software in relation to the Software.

10.4 Any provision of this licence that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this licence shall remain in full force and effect.

10.5 Termination or expiry of this licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the licence which existed at or before the date of termination or expiry.

10.6 On termination for any reason:

10.6.1 all rights granted to the Customer under this licence shall cease;

10.6.2 the Customer shall cease all activities authorised by this licence; and

10.6.3 the Customer shall immediately destroy or return to SOMNIUM (at SOMNIUM's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to SOMNIUM that it has done so.

10.7 Any provision of this licence which expressly or by implication is intended to come into or continue in force on or after termination of this agreement including clause 1, clause 5, clause 6, clause 7, clause 8, clause 10 and clause 12 shall remain in full force and effect.


11 Miscellaneous

11.1 No failure or delay by a party to exercise any right or remedy provided under this licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.2 Except as expressly provided in this licence, the rights and remedies provided under this licence are in addition to, and not exclusive of, any rights or remedies provided by law.

11.3 Each party acknowledges that, in entering into this licence, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.

11.4 No variation of this licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5 If any provision or part-provision of this licence is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this licence. If any provision or part-provision of this licence is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.6 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.

11.7 Nothing in this licence is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

11.8 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

11.9 Except for an obligation to make payment, neither party shall be in breach of this licence nor liable for delay in performing, or failure to perform, any of its obligations under this licence if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.10 Any notice given to a party under or in connection with this licence shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service or pre-paid airmail at its registered office or its principal place of business (in any other case).

11.11 Any notice shall be deemed to have been received:

11.11.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or

11.11.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or

11.11.3 if sent by pre-paid airmail, at 9.00 am on the fifth Business day after posting.

11.12 Clauses 11.10 and 11.11 shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include e-mail.

11.13 This licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

11.14 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).


Schedule

Numbers of simultaneous users depend on the product and license type.