CHANGEBASE END USER LICENCE AGREEMENT

IMPORTANT – READ CAREFULLY:
This End-User Licence Agreement ("EULA" or "the Agreement") is a legal agreement between You (the name appearing on the above ChangeBASE Sales Order number ("ChangeBASE Sales Order") and all your affiliates*, who will be referred to in this Agreement as "You") and Change Base Ltd, New Broad St House, 35 New Broad St, London EC2M 1NH ("ChangeBASE") for the ChangeBASE Software detailed in the ChangeBASE Sales Order, which includes associated media and documentation ("Licensed Programs"). This Agreement is only in force for the duration of the Sales Order. All obligations in this Agreement placed on ChangeBASE cease once the ChangeBASE Sales Order has been fulfilled by ChangeBASE. The obligations on You in this Agreement will remain in force following the fulfillment of the ChangeBASE Sales Order. The Licensed Programs are limited to the products defined in the ChangeBASE Sales Order and do not include any other software or programs of ChangeBASE.
Any amendment or addendum to this Agreement must be signed by two directors of ChangeBASE in order to take precedence over this Agreement. The Licensed Programs includes any new releases that ChangeBASE may provide to You or make available to You after the date You obtained Your initial copy of the Licensed Programs. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING OR USING THE LICENSED PROGRAMS.

1. Grant of Licence
1.1. ChangeBASE grants to You a non-exclusive, non-assignable, non-transferable licence (the "Licence") to use the Licensed Programs subject to the terms and conditions contained in this Agreement and the ChangeBASE or its Partner's Sales Order.

1.2. You shall use the Licensed Programs for processing data of the single named client in the ChangeBASE or its Partner's Sales Order and for no more than the number of applications detailed in the ChangeBASE or its Partner's Sales Order. Your client may not have access to the Licensed Programs nor do they obtain any rights to the Licensed Programs as part of this Agreement.

1.3. You acknowledge that you are licensed to use the Licensed Programs only in accordance with the express terms of this Agreement and not further or otherwise.

2. Term
2.1. The Licence shall commence on the date of first installation and, unless a perpetual license has been granted to you as identified in the applicable Sales Order, the License shall end the earlier of the completion of the number of applications detailed in the ChangeBASE or its Partner's Sales Order or upon completion of the duration of the applicable Sales Order.

3. Price and Conditions
3.1. The price payable by You and the associated conditions will be as detailed in the ChangeBASE or Partner's Sales Order. Failure to pay the fees detailed in the said Sales Order on time will lead to a charge of 2% above the standard Barclays Bank plc base rate.

3.2. You agree to allow ChangeBASE or its Partner to audit the databases of the Licensed Programs You have installed in order to validate usage levels. In the event usage levels are found to be greater than contracted for, you agree to pay ChangeBASE the applicable fees for the additional usage.

3.3. You agree to pay the fees in full in accordance with an invoice from ChangeBASE or an authorised reseller, distributor, or dealer, if applicable. The fees are, unless otherwise stated, exclusive of any taxes, duties, licenses, fees, excises or tariffs.

3.4. In order to qualify for support during your Licence period ChangeBASE or its Partner require You to ensure that your version of the software is updated to the latest version.

4. Copying
4.1. You may make only so many copies of the Licensed Programs as are reasonably necessary for operational security and internal use. Such copies and the media on which they are stored shall be the property of ChangeBASE and You shall ensure that all such copies bear the ChangeBASE's proprietary notice. The Licence shall apply to all such copies as it applies to the Licensed Programs.

4.2. No copies may be made of the program documentation.

5. Restrictions on alterations
5.1. You undertake not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Licensed Programs.

6. Security and control
6.1. You shall during the continuance of the Licence:

6.1.1 effect and maintain adequate security measures to safeguard the Licensed Programs from access or use by any unauthorised person; and

6.1.2 retain the Licensed Programs and all copies thereof under Your effective control.

7. Proprietary Rights
7.1. The Licensed Programs and the Intellectual Property Rights** of whatever nature in the Licensed Programs are and shall remain the property of ChangeBASE.

8. Warranties
8.1. ChangeBASE warrants that following the date of receipt of the ChangeBASE or its Partner's Sales Order for the Licensed Programs, and until the earlier of 90 days following your receipt of the Sales Order or the expiration of the said Sales Order, the Licensed Programs shall perform substantially in accordance with published specifications, current at the time of receipt. In the event the Licensed Programs fail to perform as warranted, ChangeBASE shall, at its option, repair or replace the Licensed Programs to comply with the warranty.

8.2. The said warranty above shall be subject to You complying with Your obligations under the terms of this Agreement and shall also be subject to the limits and exclusions of liability set out in clause 9 below. In particular, the said warranty shall not apply to the extent that any defect in the Licensed Programs arose or was exacerbated as a result of:

8.2.1 incorrect use, operation or corruption of the Licensed Programs;

8.2.2 any unauthorised modification or alteration of the Licensed Programs;

8.2.3 use of the Licensed Programs with other software or on equipment with which it is incompatible.

8.3. To the extent permitted by applicable law, ChangeBASE:

8.3.1 disclaims all other warranties with respect to the Licensed Programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result;

8.3.2 makes no warranty that the Licensed Programs are error free or that its use will be uninterrupted and You acknowledge and agree that the existence of such errors shall not constitute a breach of this Agreement; and

8.3.3 does not give any warranty in respect of third party products or data accepted from third party websites.

8.4. Due to the inherent complexities of Applications and operating systems, and patches and upgrades, ChangeBASE does not warrant that the Licensed Programs will lead to Your Applications working perfectly on Your operating system at all times.

9. ChangeBASE's Liability
9.1. ChangeBASE shall indemnify you for personal injury or death caused by defects in any Licensed Program supplied pursuant to this Agreement.

9.2. Save in respect of claims for death or personal injury, in no event will ChangeBASE be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of ChangeBASE whether such damages were reasonably foreseeable or actually foreseen.

9.3. Except as provided above in the case of personal injury, death and damage to tangible property, ChangeBASE's maximum liability to You under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the lower of:

9.3.1 the sum of £1 million; and

9.3.2 a sum equivalent to two times the price paid to ChangeBASE for the products that are the subject of Your claim.

9.4. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.

10. Termination
10.1. ChangeBASE may terminate the Licence forthwith on giving notice in writing to You if You commit any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from ChangeBASE or its Partner to do so, to remedy the breach (such request to contain a warning of ChangeBASE's intention to terminate).

10.2. Forthwith upon the termination of the Licence, You shall return to ChangeBASE the Licensed Programs and all copies of the whole or any part thereof or, if requested by ChangeBASE, shall destroy the same and certify in writing to ChangeBASE that they have been destroyed. PROVIDED THAT You may extract and store any of Your data upon a separate media for continuity purposes.

10.3. Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.

11. Data Protection

11.1. You and ChangeBASE undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.

12. Entire agreement
12.1. This Agreement (including any addendum or amendment to this Agreement which is included with the Licensed Programs) supersedes all prior agreements, arrangements (whether written or oral) and undertakings between You and ChangeBASE in relation to the Licensed Programs and constitutes the entire agreement between you and ChangeBASE with respect to the Agreement relating to the subject matter of this Agreement.

13. Severance
13.1. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

14. Language
14.1. This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.

15. Proper law and jurisdiction
15.1. This Agreement and all matters arising from it shall be governed by and construed in accordance with English law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:

15.1.1 ChangeBASE shall have the right to sue to recover its fees in any jurisdiction in which You are operating or have assets; and

15.1.2 ChangeBASE shall have the right to sue for breach of its Intellectual Property Rights (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its Intellectual Property Rights might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by You and ChangeBASE to be England.

15.2. There are no third party beneficiaries of this Agreement.

15.3. You and ChangeBASE are independent parties. Nothing in this Agreement shall be construed as making you an employee, agent or legal representative of ChangeBASE.

15.4. Failure by ChangeBASE to enforce any particular term of Agreement shall not be construed as a waiver of any of its rights under it.

16. Compliance with relevant law

16.1. You and ChangeBASE will comply with all applicable laws, rules and regulations in respect of all activities conducted under this Agreement. You acknowledge and agree that the Licensed Programs are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the "Export Controls"), and agree not to export or re-export, or allow the export or re-export of the Licensed Programs or any copy, portion or direct product of the foregoing in violation of the Export Controls.

 

* means in respect of a party to this Agreement (1) any holding company or subsidiary company of that party or any company which is a subsidiary company of that party's holding company from time to time (2) any company or entity (which shall include a partnership or unincorporated body) directly or indirectly controlled by, controlling or under common control with a company or any Affiliate of a company. The expressions "holding company" and "subsidiary" shall have the meanings respectively ascribed thereto by Section 736 of the Companies Act 1985 and the expression "control" shall mean the ability to exercise or control at least twenty (20) per cent of the voting rights (whether in respect of board or member voting) in the relevant company or entity.

** Intellectual Property Rights means any and all patents, patent applications, know-how, improvements, modifications, moral rights, trademarks, trade mark applications, trade names, registered design, copyright, database rights, moral rights or other similar intellectual property rights created, developed, subsisting or used by ChangeBASE whether in existence at the date hereof or created in the future.