This software licence agreement (“Licence”) sets out the terms on which customers (each, a “Customer”) may use the software (including any updates which may be provided) and associated published documentation (“Software”) which is provided or made available to them by Lumacoustics Ltd (“Luma”).
1. Grant and scope of licence
1.1 In consideration of payment by Customer of the agreed fee and Customer agreeing to abide by the terms of this Licence, save as provided in clause 1.2 below, Luma hereby grants to Customer a non-exclusive, non-transferable, non-perpetual licence to use the Software as detailed herein.
1.2 The Software includes third party software components which are licensed to the Customer by such third parties on terms and conditions as are included with such software components by the licensors thereof. Customer agrees to comply with the provisions of the third party terms and conditions and to fully indemnify Luma in the event of any breach thereof. Luma does not provide any warranties or indemnities with regard to such third party software components.
1.3 Customer is hereby licensed to:
1.3.1 use the Software solely as a component of the equipment supplied to it by Luma;
1.3.2 allow third parties to use the Software solely as a component of the equipment supplied to it by Luma;
1.3.3 receive and use any free supplementary software code or update of the Software incorporating patches and corrections of errors as may be provided by Luma from time to time; and
1.3.4 use any documentation in support of the use permitted hereunder and make copies of the documentation as are reasonably necessary for its lawful use.
1.4 Luma reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Licence. Customer understands and agree that (i) the Software is protected by copyright and other intellectual property laws, (ii) Luma and/or its suppliers own the title, copyright, and other intellectual property rights in the Software, (iii) the Software is licensed for a limited duration, and not sold, (iv) this Licence does not grant to Customer any rights to Luma’s trademarks or service marks and (v) Customer has no right to have access to the Software in source code form or in unlocked coding or with comments. 2. Customer’s undertakings 2.1 Except as expressly set out in this Licence or as permitted by any applicable local law, Customer undertakes:
2.1.1 not to copy the Software except where incidental to normal use of the Software;
2.1.2 not to rent, lease, sub-license, loan, the Software or documentation save insofar as such is incidental to the use of the equipment supplied to it by Luma;
2.1.3 not to make alterations to, or modifications of, translate, merge, adapt, vary or modify the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
2.1.4 not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by Customer during such activities:
188.8.131.52 is used only for the purpose of achieving inter-operability of the Software with another software program; and
184.108.40.206 is not unnecessarily disclosed or communicated without the Luma’s prior written consent to any third party; and
220.127.116.11 is not used to create any software which is substantially similar to the Software;
2.1.5 to keep all copies of the Software secure;
2.1.6 to supervise and control use of the Software and ensure that the Software is used in accordance with the terms of this Licence; and
2.1.7 to replace the current version of the Software with any updated or upgraded version or new release provided by Luma under the terms of this Licence immediately on receipt.
2.2 Customer shall permit Luma and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises at which the Software is being kept or used, to the computer equipment located there, and to any records kept pursuant to this Licence, for the purpose of ensuring that Customer is complying with this Licence. 3. Infringement of Intellectual Property Rights
3.1 Luma will at its own expense defend or settle any claim, suit, action, or proceeding brought against Customer by a third party to the extent it is based on an allegation that the non-third-party Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which such Software is delivered to Customer by Luma, or misappropriates a trade secret in such country (a “Claim”). Additionally, Luma shall pay any judgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim, and reasonable administrative costs or expenses, including without limitation reasonable attorneys’ fees, necessarily incurred by Customer in responding to the Claim.
3.2 Luma’s obligations under clause 3.1 are subject to Customer:
3.2.1 giving prompt written notice of the Claim to Luma;
3.2.2 permitting Luma to retain sole control of the investigation, defence or settlement of the Claim, and
3.2.3 providing Luma with such cooperation and assistance as Luma may reasonably request from time to time in connection with the investigation, defence or settlement of the Claim.
3.3 Luma shall have no obligation hereunder to defend Customer against any Claim:
3.3.1 resulting from use of the relevant Software other than as authorised in the Licence,
3.3.2 resulting from a modification of the relevant Software other than by Luma,
3.3.3 based on use of the relevant Software after Luma recommends discontinuation because of possible or actual infringement, or
3.3.4 based on use of a superseded or altered release of the relevant Software if the infringement would have been avoided by use of a current or unaltered release of the relevant Software made available to Customer.
3.4 If use of the relevant Software is prevented as a result of a Claim, Luma shall, at its expense and option either:
3.4.1 obtain for Customer the right to continue using the relevant Software,
3.4.2 replace the relevant Software with a functionally equivalent non-infringing product,
3.4.3 modify the relevant Software so that it is non-infringing, or
3.4.4 accept the return of the relevant Software and refund the licence fee paid for the Software (if any), pro-rated over a 36 month period from the date of delivery of the Software.
3.5 This clause 3 states the entire liability of Luma, and Customer’s sole and exclusive remedy, with respect to a Claim.