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MetriQ License IMPORTANT: Do not load this software until you have carefully read and agreed to the following terms and conditions. If you do not agree to these terms, do not install or use this software. METRIQ SOFTWARE LICENSE AGREEMENT METRIQ SOFTWARE LICENCE
1. Parties This Software Licence is made between METRIQ and the Licensee. 2. Licence (a) By signing this Licence and/or clicking on the “I Accept” button at the end of this Licence, the Licensee hereby accepts, and METRIQ hereby grants, a non-exclusive, non-transferable Licence to "Use" (as defined below) the Software, upon the terms and subject to the conditions contained herein. (b) For the purposes of this Licence, "Use" shall mean and include: (i) utilisation of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk, CD ROM or other storage device) of the Licensee’s system for the processing of the system instructions or statements contained in such Software; (ii) copying the Software which is in machine-readable form for Use by the Licensee on the Licensee’s system for the purposes only of understanding the contents of such machine-readable material and for back-up, provided that no more than one copy will be in existence under any Licence at any one time without prior written consent from METRIQ or as otherwise permitted by the applicable law; (iii) merging the whole or any part of the Software in machine-readable form into another software program; (iv) storing the whole or any part of the Software on the Licensee’s system or other storage unit or disk; (v) utilising (but not copying) the instructional and/or operational manuals relating to the Software. (c) This Licence entitles the Licensee to: (i) receive one copy of the Software for Use, together with the necessary documentation to install and Use the same; (ii) load, install and Use the Software on: (a) if a single user licence is purchased, one Central Processing Unit ("CPU") of the Licensee’s system (a separate licence fee being required for each CPU upon which the Licensee wishes to use the Software); or (b) if a server licence is purchased or otherwise agreed to in writing by METRIQ, on a single designated server, being a single computer which provides shared services to multiple single computers linked to the server (“Server”), subject to the number of concurrent users designated in the applicable purchase order accepted by METRIQ (a separate licence fee being required for the Server copy and each additional concurrent user of the Software), in each case where such single CPU or Server, and each single computer that is linked to the Server and used to access the Software, is owned, leased or otherwise substantially controlled by the Licensee; (iii) Use the Software in accordance with the provisions of Clause 2 of this Licence; (iv) receive information on upgraded versions of the Software at such cost (if any) as may be notified to the Licensee. (d) For the purposes of this Licence upgraded versions of the Software shall mean enhancements, improvements or modifications to the Software. (e) Where the Licensee has purchased this Software as an upgrade, the Software shall constitute a single product together with the product that the Licensee has upgraded, and may not be used to increase the total number of licensed copies of the Software. The Licensee may use the upgraded product only in accordance with this Licence. 3. Evaluation Period (a) If the Licensee has obtained permission from METRIQ to evaluate the Software, the Licensee may install the Software on one CPU or a single Server on a temporary basis for evaluation purposes only. The evaluation period is limited to 20 days from the date the Software is installed ("Evaluation Period"). Upon completion of the Evaluation Period the Licensee’s licence to use the Software expires. (b) WITHOUT LIMITING ANY OTHER PROVISION OF THIS LICENCE, DURING THE EVALUATION PERIOD THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS "WITH ALL FAULTS”. THE LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE DURING THE EVALUATION PERIOD. SHOULD THE SOFTWARE PROVE DEFECTIVE DURING THE EVALUATION PERIOD, THE LICENSEE, AND NOT METRIQ OR ITS LICENSORS, SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING AND REPAIR. (c) In order to Use the Software after the Evaluation Period, the Licensee must pay the licence fee specified in clause 4(a). If the Licensee does not do so, the Licensee shall destroy or permanently delete the Software from its system upon expiration of the Evaluation Period, and shall not reinstall a new copy of the Software. 4. Licence Fee (a) The Software is sold as a subscription product. Subject to clause 3(a), the licence fee stipulated by METRIQ from time to time (“Licence Fee”) is payable in advance by the Licensee. The initial subscription period begins on the date on which the Licensee pays the Licence Fee and first activates the Software and ends 365 days after that date (“Initial Term”). (b) The Licensee may renew its subscription for the Software for further periods of 365 days (each such period a “Further Term”) by paying, after the expiry of the Initial Term and each Further Term, the renewal fee applicable at the relevant time. This Licence will continue to apply to the Licensee’s Use of the Software during each Further Term, unless otherwise specified by METRIQ in writing. If the Licensee fails to renew its subscription for the Software after the expiry of the Initial Term or a Further Term (as the case may be) the Licensee may not continue to Use the Software. (c) An additional Licence Fee is payable for each CPU upon which the Licensee wishes to Use the Software or, in the case of a Server licence, for each additional concurrent user which the Licensee wishes to use the Software. (d) All charges referred to in this Licence are exclusive of and net of any taxes, duties or such other additional sums including, but without prejudice to the foregoing generality, value added/purchase tax, excise tax, (tax on sales, property or use), import or other duties, and whether levied in respect of this Licence, the Software, its use or otherwise. 5. Software Enhancement and Other Services (a) METRIQ may offer information on upgrades to, and enhancements of, the Software at such cost (if any) as may be notified to the Licensee. (b) METRIQ shall charge for other software services requested by the Licensee which are not specifically covered by this Licence. 6. Licensee's Undertakings (a) The Licensee undertakes not to perform any of the acts referred to in this clause except to the extent and only to the extent permitted by the applicable law to the Licensee as a lawful user (i.e. a party with an express right to use) of the Software and only then for the specific limited purposes stated in such applicable law or hereunder. (b) The Licensee undertakes: (i) not to copy the Software (other than for normal system operation and as specified in clause 2) nor otherwise reproduce the same, provided that the Licensee may copy the Software for back-up purpose or incidentally, in the course of converting the Software in accordance with paragraph (iii) below; (ii) not to translate, adapt, vary, or modify the Software; (iii) not to disassemble, decompile or reverse engineer the Software, provided that in the case of decompilation, the Licensee may incidentally decompile the Software only if it is essential so to do in order to achieve interoperability of the Software with another software program ("Permitted Purpose") and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party to whom it is not necessary to disclose or communicate such information without METRIQ's prior written consent and is not used to create any software which is substantially similar to the expression of the Software nor used in any manner which would be restricted by copyright. (c) In addition, the Licensee undertakes: (i) to maintain accurate and up-to-date records of the number and location of all copies of the Software; (ii) to supervise and control Use of the Software in accordance with the terms of this Licence; (iii) to replace the current version of the Software with the updated or upgraded version forthwith upon receipt; (iv) to reproduce and include the copyright notice of METRIQ on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software made herein; (v) not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the Licensee's employees without prior written consent from METRIQ; (vi) within fourteen (14) days after the date of termination or discontinuance of this Licence for whatever reason, to return or destroy (as METRIQ shall instruct) the Software and all updates, upgrades or copies, in whole and in part, in any form including partial copies or modifications of the Software received from METRIQ or made in connection with this Licence and all documentation relating thereto and to furnish METRIQ with a certificate, certifying that the same has been done, unless the Licensee has obtained METRIQ's prior written authorisation to retain one copy for archive purposes only or for such other purpose which METRIQ may authorise together with any conditions METRIQ may impose in respect of such continued retention. 7. Usage verification At METRIQ’s request, but not more frequently than annually, the Licensee shall provide to METRIQ a document signed by the Licensee’s authorised representative verifying the Licensee’s usage of the Software (“Usage Statement”). The Licensee will permit METRIQ to review the Licensee’s deployment and use of the Software for compliance with the terms and conditions of this Software Licence at METRIQ’s expense. METRIQ shall give not less than fourteen (14) days prior notice of any review, which shall be conducted during the Licensee’s normal business hours at the Licensee’s facilities, and shall not unreasonably interfere with the Licensee’s business activities. If the Licensee’s use of the Software is found to be greater than that contracted for, the Licensee will be invoiced for the additional licences or licence upgrades (based on the applicable units of measure, e.g. CPUs, Servers or users) and the unpaid licence fees shall be payable in accordance with this Software Licence. If the unpaid licence fees exceed 5% of the licence fees payable based on the Usage Statement provided to METRIQ by the Licensee under this clause, then the Licensee shall also pay METRIQ’s reasonable costs of conducting the review. 8. Licensor's Liability (a) METRIQ SHALL NOT BE LIABLE TO THE LICENSEE FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS LICENCE, THE SOFTWARE, USE OF THE SOFTWARE, THE LICENSEE’S INABILITY TO USE THE SOFTWARE OR OTHERWISE, EXCEPT TO THE EXTENT TO WHICH IT IS UNLAWFUL TO EXCLUDE SUCH LIABILITY UNDER THE APPLICABLE LAW. (b) NOTWITHSTANDING THE GENERALITY OF PARAGRAPH (A) ABOVE, METRIQ EXPRESSLY EXCLUDES LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE SOFTWARE, ITS USE OR IN RESPECT OF EQUIPMENT OR PROPERTY, OR FOR PERSONAL INJURY, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES WHATSOEVER, EVEN IF METRIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. (c) IN THE EVENT THAT ANY EXCLUSION CONTAINED IN THIS LICENCE SHALL BE HELD TO BE INVALID FOR ANY REASON AND METRIQ BECOMES LIABLE FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY SHALL BE LIMITED AT THE OPTION OF METRIQ TO ANY ONE OR MORE OF THE FOLLOWING: (i) THE REPLACEMENT OF THE SOFTWARE OR THE SUPPLY OF EQUIVALENT SOFTWARE; (ii) THE REPAIR OF THE SOFTWARE; (iii) THE PAYMENT OF THE COST OF HAVING THE SOFTWARE REPAIRED. (d) THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). METRIQ AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. 9. Copyright, Patents, Trade Marks and Other Intellectual Property Rights (a) The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software including all documentation and manuals relating thereto, are and shall remain the sole property of METRIQ or METRIQ’s licensors. The Licensee shall not during or at any time after the expiry or termination of this Licence in any way question or dispute the ownership by METRIQ thereof. (b) In the event that new inventions, designs or processes evolve in performance of or as a result of this Licence, the Licensee acknowledges that the same shall be the property of METRIQ unless otherwise agreed in writing by METRIQ. (c) The Licensee shall indemnify METRIQ fully against all liabilities, costs and expenses which METRIQ may incur as a result of work done in accordance with the Licensee's specifications involving infringement of any patent or other proprietary right. 10. Warranty (a) METRIQ warrants the media on which the Software is recorded and delivered by METRIQ to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. The Licensee’s exclusive remedy under this clause shall be, at METRIQ’s option, a refund of the Licence Fee or replacement of the Software which is returned to METRIQ or an METRIQ authorised representative with a copy of the receipt. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE, EXCEPT TO THE EXTENT TO WHICH IT IS UNLAWFUL TO EXCLUDE IMPOSE A RESTRICTION ON THE LENGTH OF THE WARRANTY UNDER THE APPLICABLE LAW. THE LIMITED WARRANTY SET OUT IN THIS CLAUSE IS THE ONLY WARRANTY MADE TO THE LICENSEE AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. (b) SUBJECT TO PARAGRAPH (A) ABOVE, THE LICENSEE ACKNOWLEDGES THAT USE OF THE SOFTWARE IS AT THE LICENSEE’S SOLE RISK AND THAT THE SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THAT THE SOFTWARE CANNOT BE GUARANTEED ERROR FREE AND THAT THE EXISTENCE OF ANY SUCH ERRORS WILL NOT CONSTITUTE A BREACH OF THIS LICENCE. IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, METRIQ AND ANY LICENSOR OF METRIQ DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ACCURACY WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION. THE LICENSEE ACCEPTS ALL RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. NO WARRANTY OR REPRESENTATION IS MADE THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR ITS CONFIGURATION, THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY METRIQ OR AN METRIQ AUTHORISED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, THE LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. (c) IN THE EVENT ANY STATUTE IMPLIES TERMS INTO THIS LICENCE WHICH CANNOT BE LAWFULLY EXCLUDED, SUCH TERMS WILL APPLY TO THIS LICENCE, SAVE THAT THE LIABILITY OF METRIQ FOR BREACH OF ANY SUCH IMPLIED TERM WILL BE LIMITED, AT THE OPTION OF METRIQ TO ANY ONE OR MORE OF THE FOLLOWING: (i) THE REPLACEMENT OF THE SOFTWARE OR THE SUPPLY OF EQUIVALENT SOFTWARE; (ii) THE REPAIR OF THE SOFTWARE; (iii) THE PAYMENT OF THE COST OF HAVING THE SOFTWARE REPAIRED. (d) METRIQ DOES NOT GUARANTEE THE SEQUENCE, ACCURACY, COMPLETENESS OR TIMELINESS OF THE CONTENT DISPLAYED BY OR ACCESSED THROUGH THE SOFTWARE. NEITHER METRIQ NOR ITS LICENSORS SHALL BE LIABLE, DIRECTLY OR INDIRECTLY, IN ANY WAY, TO THE LICENSEE OR ANY OTHER PERSON FOR CONTENT RECEIVED USING THE SOFTWARE OR FOR ANY INACCURACIES, ERRORS IN OR OMISSIONS FROM THE CONTENT. (e) THE LICENSEE ACKNOWLEDGES THAT IT HAS EXERCISED ITS INDEPENDENT JUDGEMENT IN ACQUIRING THE SOFTWARE AND HAVE NOT RELIED ON ANY REPRESENTATION MADE BY METRIQ WHICH HAS NOT BEEN STATED EXPRESSLY IN THIS LICENCE OR UPON ANY DESCRIPTIONS OR ILLUSTRATIONS OR SPECIFICATIONS CONTAINED IN ANY DOCUMENT INCLUDING CATALOGUES OR PUBLICITY MATERIAL PRODUCED BY METRIQ. 11. Confidential Information (a) All information, data, drawings, specifications, documentation, software listings, source or object code which METRIQ may have imparted and may from time to time impart to the Licensee relating to the Software (other than the ideas and principles which underlie the Software) is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Licence and that it shall not at any time during or after expiry or termination of this Licence, disclose the same, whether directly or indirectly, to any third party without METRIQ's prior written consent. (b) Subject only to the specific, limited provisions of paragraph (a) above, the Licensee further agrees that it shall not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Software nor shall the Licensee sell, lease, license, sub-license or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any confidential information supplied to it by METRIQ. (c) The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law. 12. Force Majeure METRIQ shall be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of this Licence arising by reason of force majeure, namely, circumstances beyond the control of METRIQ which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer). 13. Termination (a) In addition to provisions for termination as herein provided, METRIQ may by notice in writing to the Licensee terminate this Licence if any of the following events shall occur: (i) if the Licensee is in breach of any term, condition or provision of this Licence or required by the applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from METRIQ; (ii) if the Licensee, being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation); shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts. (b) Upon termination, the Licensee shall comply with the undertaking specified in clause 6(c)(vi) and shall pay to METRIQ all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the Software, this Licence or otherwise. (c) Termination, howsoever or whenever occasioned, shall be subject to any rights and remedies METRIQ may have under this Licence or in law. 14. Assignment The Licensee shall not assign or otherwise transfer all or part of the Software or this Licence without the prior written consent of METRIQ. 15. Waiver Failure or neglect by METRIQ to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of METRIQ's rights hereunder nor in any way affect the validity of the whole or any part of this Licence nor prejudice METRIQ's rights to take subsequent action. 16. Headings The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Licence. 17. Severability In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law. 18. Notices Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent shall be deemed to be served three [3] days following the date of posting. 19. Entire Agreement This Licence constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Licence will be binding unless in writing and signed by METRIQ. Any translation of this Licence is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Licence shall prevail. 20. Third Party Acknowledgements Portions of the Software utilise or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the “online” electronic documentation for the Software, and your use of such material is governed by their respective terms. 21. Law The construction and interpretation of this Licence and any matter or dispute arising out of or in connection with it or its termination will be governed by and construed according to the laws of Jersey and the parties submit to the exclusive jurisdiction of the Jersey Courts.
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