Terms of service


WEBSITE USE TERMS AND CONDITIONS


Visual Analysis Pty Ltd T/A VA-Worldwide

This website with URL address https://www.va-worldwide.com is owned and operated by Visual Analysis Pty Ltd (ABN 24 075 960 075). Should you continue to use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern Visual Analysis Pty Ltd’s relationship with you in connection with this website. Should you not agree with any of these terms and conditions, please do not use our website.

The term ‘VA’ or ‘Visual Analysis Pty Ltd’ or ‘us’ or ‘our’ or ‘we’ refers to Visual Analysis Pty Ltd ABN 24 075 960 075, the owner of the website, whose registered office is L1, The Lonsdale Centre, 6 Lonsdale Street, Braddon, in the Australian Capital Territory. The term ‘you’ or ‘your’ refers to the website user.

  1. Your use of this website is subject to the following terms and conditions:
  2. The content of this website is for your general information and use only. It is subject to change without prior notice.
    This website uses cookies to monitor browsing preferences. A cookie is a piece of data stored on a site visitor’s hard drive to help us improve your access to our site and identify repeat visitors to our site. For instance, when we use a cookie to identify you, you would not have to log in a password more than once, thereby saving time while on our site. Cookies can also enable us to track and target the interests of our users to enhance the experience on our site. Usage of a cookie is in no way linked to any personally identifiable information on our site.
  3. Neither we nor any third parties provide any warranty or guarantee as to the performance, accuracy, timeliness, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
  4. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
  5. This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the content, design, layout, appearance, look and graphics of the website. Any reproduction of the website’s material is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
  6. All trademarks reproduced in this website, which are not the property of, or licensed to us, are acknowledged on the website.
  7. Unauthorised use of this website may be a criminal offence and/or give rise to a claim for damages.
  8. This website may also, on occasion, include links to other websites which are not controlled by us. These links are provided for your convenience to provide you with further information. You acknowledge that they are used at your own risk. They do not signify that we recommend or endorse the websites. We have no control over the nature, content and availability of those websites.
  9. Your use of this website and any dispute arising out of your use of it is subject to the laws of the Australian Capital Territory.
  10. You may only use the website for lawful purposes and in a manner consistent with the nature and purpose of the website.
  11. These terms and conditions do not relate to your use of any product or service described on our website unless otherwise agreed. You must refer to the individual warranty relevant to any particular product or service.
  12. These terms and conditions may be amended from time to time. Your continued use of our website following any such amendments will be deemed to be confirmation that you accept those amendments.
  13. You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your use of the website.
  14. In no event will we be liable for any loss, damage, cost or expense including legal costs and expenses (whether direct or indirect) incurred by you in connection with the use of this website.
  15. Every effort is made to keep the website up and running smoothly. However, we take no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.

Licence Agreements


VA Service License Agreement for IBM Products

Software Licence Agreement – Visual AnalysisSoftware Licence Agreement – IBM ProductsBY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON,
OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS
AGREEMENT. THIS LICENSE SUPERCEDES ANY OTHER CLICK AND ACCEPT LICENSE FOR THE
PRODUCT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU
REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE
TERMS. IF YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY,
ACCESS, CLICK ON AN “ACCEPT” BUTTON, OR USE THE SOFTWARE; AND PROMPTLY
RETURN THE UNUSED MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT TO THE
PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID. IF THE
SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE SOFTWARE.The Software may be made available to Licensee by means of a download or of a file based key (in which
case clause 11.1 shall apply).
1. DEFINITIONS.

1.1. “Authorised User” has the meaning set forth in Section 2.1.
1.2. “Confidential Information” means all information of a confidential nature relating to, or to the business
and/or other goods or services of, a party to this Agreement; or relating to, or to the business and/or
goods and services of, a party’s affiliates or licensors; as well as the terms and conditions of this
Agreement (including, without limitation, the Licence Fee and Support Fee). Confidential Information
shall include information previously obtained by one party from the other pursuant to a non-disclosure
agreement. Confidential Information of Licensor includes, without limitation, confidential information
pertaining to the Product and Maintenance and Support Services. Confidential Information includes
information in any form, whether or not tangible. Confidential Information shall not include information
that (a) is in or enters the public domain without breach of this Agreement through no fault of the
receiving party, (b) the receiving party was demonstrably in possession of prior to first receiving it from
the disclosing party, (c) the receiving party can demonstrate was developed by the receiving party
independently and without use of, or reference to, the disclosing party’s information, or (d) the
receiving party receives from a third party without restriction on disclosure and without breach of a
non-disclosure obligation.
1.3. “Documentation” means the manuals and related materials that Licensor ordinarily distributes, at its
sole discretion, in softcopy or hardcopy with the Software, and includes documentation Licensor may
provide to Licensee in connection with Maintenance and Support Services.
1.4. “Effective Date” means the date the Product was received by Licensee.
1.5. “IBM” means International Business Machines.
1.6. “Licence Permit ” means the hardware or software authorisation key that enables an Authorised User to
access the Software.
1.7. “Intellectual Property Rights” means all patents, copyrights, database right, rights in designs, domain
names, trademarks, service marks, icons, trade names, and other proprietary rights, and all
applications and registrations therefor, wherever in the world arising or available.
1.8. “Licence Fee” has the meaning set forth in Section 5.1 (Licence Fee).
1.9. “Licensor” means the party who supplies Licensee with the Product in consideration for Licensee’s
direct payment of the Licence Fee (whether VA or a third party).
1.10. “Maintenance and Support Services” has the meaning set forth in Section 3 (Maintenance and Support
Services).
1.11. “Maintenance Releases” means those new versions of the Software and the Documentation that
contain fault fixes and minor enhancements.
1.12. “Major Release” means a new version of the Software and the Documentation that contains major
enhancements and new features.
1.13. “Media” means the physical medium on which the Software is recorded or printed.
1.14. “Product” means, collectively, the Software, the Documentation, the Media, and the Licence Permit
licensed to Licensee by Licensor pursuant to this Agreement.
1.15. “Support Fee” has the meaning set forth in Section 5.2(Support Fee).
1.16. “Initial Support Period” has the meaning set forth in Section 4.2 (Initial Support Period).
1.17. “Subsequent Support Period” has the meaning set forth in Section 5.3 (Subsequent Support
Periods).
1.18. “Truncated Support Period” has the meaning set forth in Section 5.4 (Truncated Support Periods).
1.19. “Separately Licensed Code”
means terms and conditions under IBM International Program Licence
Agreement (“IPLA”) and the applicable License Information that applies to the Program, available on
IBM Internet Website http://www.ibm.com/software/sla/sladb.nsf
1.20. “Software” means the installed set of Licensor computer programs and related file structures in object
code format, as well as all programs and file structures contained in Maintenance Releases and Major
Releases.
1.21. “Trade Secrets” means any VA or Licensor proprietary technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret (in the sense that its
confidentiality affords VA or Licensor a competitive advantage over its competitors), including without
limitation, the Software, the VA Semantic Type Library, and all technical and descriptive information
pertaining to the Product.
1.22. “User Licence” means a licence that permits one (1) Authorised User to access and use the
Product.
1.23. VA” means Visual Analysis, a company incorporated in Australia with the ABN of 24075960075 whose
registered office is situated at Level 1, 6 Lonsdale Street, Braddon, ACT, 2612.

GRANT OF LICENCE AND RESTRICTIONS

2.1. Scope of Licence. Subject to the terms and conditions of this Agreement, Licensor hereby grants
Licensee a limited, nonexclusive, non-transferable, sub-licence to access and use the Product through
Licensee’s officers, employees, staff, and independent contractors (collectively, “Authorised Users”)
who are bound by enforceable written obligations to: (i) treat the Product and Confidential Information
of Licensor as confidential (as set forth in Section 9 (Confidentiality); and (ii) use such Product and
Confidential Information only on behalf of Licensee for Licensee’s internal business purposes and only
in accordance with this Agreement. The number of Authorised Users that may concurrently use the
Product is limited to the number of User Licences acquired by Licensee. At no time may the number of
Authorised Users concurrently using a Product exceed the maximum number of User Licences for such
Product.
2.1. Orders for Additional Authorised Users. Licensee may obtain additional User Licences by requesting a
quotation from Licensor, submitting a purchase order, which is subject to Licensor’s acceptance, and
paying the applicable Licence Fee and Support Fee. All additional User Licences shall be subject to the
terms and conditions of this Agreement. Each purchase order must: (i) specify the Product ordered; (ii)
contain a statement incorporating this Agreement by reference; (iii) specify the number of User
Licences being ordered; and (iv) specify the total Licence Fee and Support Fee due for those additional
User Licences. Licensee agrees to abide by the terms of this Agreement with respect to any additional
User Licences ordered. Section 10.2 (Integration) shall apply in respect of Licensee’s purchase order.
2.2. Limited Copy Right. Licensee may make a reasonable number of copies of the Software and the
Documentation solely for backup, archival, or disaster recovery purposes. Any copy that Licensee
makes of the Software and Documentation, in whole or in part, is the property of Licensor. Licensee
agrees to reproduce and include on any copy of the Software and Documentation, in their entirety and
without alteration, all copyright, trademark, or other proprietary rights notices that appear in or on the
original.
2.3. Restrictions. Except to the extent expressly permitted by mandatory provisions of applicable law
notwithstanding any contractual agreement to the contrary, Licensee may not: (i) sell, sublicense,
lease, rent, loan, assign, convey, distribute or otherwise transfer the Product to or through any third
parties (except as otherwise expressly provided in this Agreement); (ii) copy, use, or modify the
Product for any purpose or in any manner not expressly permitted in this Agreement; (iii) use or allow
use of the Product through any timesharing service, service bureau, network, commercial hosting, or
other commercial information technology services or by any other means, by or in the interest of any
third party; (iv) use any of the program’s components, files, modules, audio-visual content, or related
license materials separately from the Software or
(v) permit or encourage any third party to do any of the foregoing.
2.5. No Reverse Engineering / Derivate Works. Except to the extent and for the purposes expressly
permitted by mandatory provisions of applicable law notwithstanding any contractual agreement to the
contrary, Licensee may not (and may not permit or encourage any third party to) without Licensor’s
express written consent: (i) reverse engineer, reverse assemble or reverse compile the Software, or any
part thereof, or otherwise attempt to derive source code; or (ii) create any alteration, adaptation,
modification, translation, improvement or derivative work of the Software or Documentation Licensee
may not deconstruct or reverse engineer a Licence Permit in order to access the Software or otherwise
attempt to bypass hardware or software authorisation.
2.6. Indemnity for Failure of Licensee to Comply with Licence. Licensee shall be responsible for, and shall
indemnify VA and Licensor (if Licensor is not VA) for, all loss arising from any failure of any of Licensee
or Authorised Users to comply with the terms and conditions of this Agreement.
2.7. All Rights Reserved. All rights not expressly granted by Licensor in this Agreement are hereby reserved
to Licensor.
2.8. Data Protection. Licensee acknowledges and agrees that personal information that is provided to
Licensor in connection with this Agreement may be: (i) processed by Licensor in accordance with
Licensor’s privacy policy, as may be amended from time to time; (ii) provided to VA where necessary
for the purposes of this Agreement, including the provision of Maintenance and Support Services; and
(iii) transferred out of the country or other jurisdiction where Licensee or Licensor is located.
2.9. Database System. Licensee acknowledges and agrees that the database system (if applicable) that is
connected to the Software (“Database System”) is licensed under a separate licence agreement
between Licensee and the provider of the Database System. Licensee acknowledges and agrees that
the Database System is governed exclusively by the applicable licence agreement with the provider of
the Database System and that such licence agreement is solely between Licensee and the applicable
provider and Licensor has no
obligation or liability, on any theory of liability, with respect to such Database System. In particular,
without limitation, Licensor has no obligation to configure the connection between the Software and the
Database System or to provide Maintenance and Support Services for the Database System. In the
event Licensee requires that Licensor have access to any third party Database System, then Licensee
hereby represents and warrants that it has obtained all necessary third party consents to permit such
access. Licensee agrees to hold Licensor harmless against any claims which result from Licensee’s
failure to obtain such consent, and Licensor’s access, if required, will be limited to providing the
applicable support or other services as required. Licensor will have no further obligation or restriction
in connection with such Database System access unless agreed to in writing.
2.10. No Tampering with Database Structure. Except as expressly permitted by the Documentation, Licensee
shall not use any means other than the Software to: (i) enter, modify, or delete data in any database
supplied by Licensor as part of the Product or generated by the Software; or (ii) modify the structure of
any such database. Licensee acknowledges and agrees that breach of this Section 2.10 (No Tampering
with Database Structure) is likely to prejudice the integrity of such database and also to result in
technical difficulties in installing and implementing future updates of the Product.
3. MAINTENANCE AND SUPPORT SERVICES
In consideration for the Support Fee for a Product, Licensor will, during the period to which the Support Fee
pertains, provide, or procure VA to provide, the services described in the Technical Support Schedule
attached to this Agreement (“Maintenance and Support Services”) for that Product.
If Licensee chooses to obtain Maintenance and Support Services for a Product, Licensee must obtain
Maintenance and Support Services for all User Licences for that Product. If Licensee does not pay the
Support Fee for a Product, then Licensor has no obligation to provide Maintenance and Support Services for
that Product and this Section 3 (Maintenance and Support Services) shall not (or, as the case may be, shall
no longer) apply. If the Licensee chooses not to obtain Maintenance and Support Services for a Product, the
agreement between the Licensor and Licensee will be deemed terminated and the Licensee will need to
cease using the product within 14 days of notification. Licensee will provide sufficient, free, and safe access
to Licensee’s facilities for Licensor to fulfil its obligations. Upon mutual agreement, Licensor or VA may
remotely access Licensee’s system to assist Licensee in isolating the software problem cause. In the event
Licensee requires that Licensor have access to any third party Database System in connection with
Maintenance and Support Services or otherwise, then Licensee hereby represents and warrants that it has
obtained all necessary third party consents to permit such access. Licensee agrees to hold Licensor
harmless against any claims which result from Licensee’s failure to obtain such consent, and Licensor’s
access, if required, will be limited to providing the applicable support or other services as required. Licensor
will have no further obligation or restriction in connection with such Database System access unless agreed
to in writing. If required, the Licensee hereby gives permission to IBM to access Licensee’s system or
facilities for the purpose of performing program services of its software component.

4. TERM AND TERMINATION

4.1. Term. This Agreement shall be deemed to have commenced on the Effective Date and is effective
until terminated as provided in this Section 4 (“Term and Termination”).
4.2. Initial Support Period. Licensee will pay Licensor’s then-current Support Fee, concurrently with the
License Fee, for each User Licence for the Product in consideration for receiving the Maintenance and
Support Services for the period of one (1) year from the Effective Date and Licensor shall provide
Maintenance and Support Services for such period (“Initial Support Period”) for that Product. If the
Licensee chooses not to obtain Maintenance and Support Services for a Product, the agreement
between the Licensor and Licensee will be deemed terminated and the Licensee will need to cease
using the product within 14 days of notification.
4.1. Termination for Cause. Licensor may, at its sole discretion, terminate this Agreement in its entirety with
respect to a Product (i.e., the licence granted hereunder and the Maintenance and Support Services), or
the Maintenance and Support Services only, effective immediately if (i) Licensee fails to pay the Licence
Fee due hereunder for more than fourteen (14) calendar days after Licensor issues a notice to the
Licensee that the Licence Fee was overdue; (ii) Licensee has breached or otherwise failed to comply
with a material obligation under this Agreement and such breach is irremediable or has continued
unremedied for a period of at least thirty (30) calendar days after Licensor issues a notice to Licensee
specifying the breach and requiring it to be remedied; or (iii) after Licensor has provided written notice
of a breach described in sub-section (ii), Licensee repeats the same breach within the consecutive
twelve (12) months period following the date such notice was first given. Licensor may, at its sole
discretion, terminate Maintenance and Support Services for a Product if Licensee fails to comply with a
material obligation under the Technical Support Schedule or fails to pay the Support Fee due hereunder
for more than fourteen (14) calendar days after receiving a notice from Licensor that the Support Fee is
overdue.
4.2. Bankruptcy. Licensor may terminate this Agreement immediately if Licensee institutes or consents to
any proceedings in insolvency or bankruptcy,
4.3. Obligations upon Termination. Upon termination of this Agreement for any reason Licensee shall
discontinue use of the Product and any portion thereof, and return the Product, Licence Permit, and all
Confidential Information to Licensor, or, at Licensor’s option, destroy the Product and all Confidential
Information, and all copies or partial copies thereof. Termination of this Agreement does not free either
party from any of its obligations under this Agreement that call for performance after the termination
date, and termination shall not affect the rights of either party accruing prior to termination. Each
party’s right to terminate shall be in addition to any legal and equitable remedies available to such
party.
4.4. Licensee Termination. The Licensee may terminate this agreement with 14 days notice to the Licensor.
Upon termination of this Agreement for any reason the Licensee shall discontinue use of the Product
and any portion thereof, and return the Product, Licence Permit, and all Confidential Information to
Licensor, or, at Licensor’s option, destroy the Product and all Confidential Information, and all copies
or partial copies thereof. The Licensee will not be entitled to a reimbursement of funds for the period
not consumed if the agreement is terminated prior to the anniversary date of the support period.
4.5. Survival. The provisions of this Agreement which by their terms are intended to survive the termination
of this Agreement, including but not limited to, Sections 2.3 (Limited Copy Right), except for the first
sentence of that section, 2.4 (Restrictions), 2.5 (No Reverse Engineering / Derivate Works), 2.7 (All
Rights Reserved) through 2.8 (Data Protection), 2.9 (Database System), 4 (Term and Termination), 5
(Fees and Payment), 6.5 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitations of Liability), 9
(Confidentiality) and 10 (Miscellaneous) shall survive any termination of this Agreement.

5. FEES AND PAYMENT

5.1. Licence Fee. Licensee shall pay Licensor a licence fee per User Licence as specified in Licensor’s
quotation (“Licence Fee”).
5.2. Support Fee. Licensee shall pay Licensor a Support Fee per User Licence as specified in Licensor’s
quotation for Maintenance and Support Services (“Support Fee”) for the Initial Support Period.
5.3. Subsequent Support Periods. After the Initial Support Period, support for this Agreement may be
renewed upon mutual agreement of the parties.
5.4. Truncated Support Periods. If Licensee obtains licences for additional User Licences or Products after
the Effective Date, the Subsequent Support Period shall be truncated, as determined by Licensor, so
that the terms for Maintenance and Support Services for all licences of the Products held by Licensee
coincide (“Truncated Support Period”).
5.5. Support Fee for Truncated Support Period. The Support Fee during a Truncated Support Period shall be
prorated by Licensor.
5.6. Reinstatement Fee for Lapsed Period. If, at any time, Licensee discontinues Maintenance and Support
Services, the reinstatement of Maintenance and Support Services shall be subject to a reinstatement
fee in accordance with Licensor’s then-current policy.
5.7. Invoices. Licensor will invoice to Licensee all Licence Fees and Support Fees and any expenses
incurred pursuant to Section 3 (Maintenance and Support Services) or the Technical Support Schedule.
Amounts are due upon receipt of invoice and payable within 30 days or as specified in an invoice.
Licensee agrees to pay accordingly, including any late payment fees. The Licence Fee (including the
Support Fee for the Initial Support Period) shall be invoiced on or after the Effective Date. The Support
Fee for each Subsequent Support Period shall be invoiced upon acceptance of Licensee’s purchase
order for Maintenance and Support Services for that Subsequent Support Period.
5.8. Taxes. If any authority imposes on the Product or related Maintenance and Support Services a duty,
tax, levy, or fee, excluding those based on Licensor’s net income, then Licensee agrees to pay that
amount, as specified in an invoice, or supply exemption documentation. Licensee is responsible for
any personal property taxes for the Product from the date that Licensee obtains it. If any authority
imposes a customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of
the Software outside the country in which the original Licensee was granted the license, then Licensee
agrees that it is responsible for, and will pay, any amount imposed in addition to the relevant Licence
Fee or Support Fee.
5.9. Other Fees. The Licence Fee and the Support Fee are exclusive of charges for all services that are not
Maintenance and Support Services. If additional professional services are required by Licensee,
including but not limited to, training, consulting, and services required to correct errors or problems
caused by Licensee, Authorised Users, Licensee’s hardware, or to perform additional new configuration
changes requested by Licensee, such services will be provided under a separate agreement. If
Licensee loses or damages a copy of the Product or the Licence Permit, Licensor will provide Licensee
with a replacement copy for payment of a reasonable replacement fee in accordance with Licensor’s
then-current replacement policy.

6. LIMITED WARRANTIES

6.1. Limited Product Warranty. Licensor warrants that, for ninety (90) calendar days after the Effective Date
(“Warranty Period”), the Software (excluding the Maintenance Releases and Major Releases), when
used in its specified operating environment will, when used in accordance with this Agreement,
conform to its specifications. If within such Warranty Period any Software fails so to perform, Licensee
may (i) return the Product for replacement without charge; or (ii) at Licensor’s sole discretion, request a
refund of the Licence Fee actually paid by Licensee in exchange for return of the non-conforming
Product. Licensor warrants that, during the Warranty Period, the Media and the Documentation shall be
free from defects in materials and workmanship. If, within the Warranty Period, any such defect or
deviation in the Media or Documentation appears, Licensee may return the Product to Licensor for
replacement without charge. The warranty applies only to the unmodified portion of the Product.
Licensee is responsible for the results obtained from the use of the Product and Maintenance and
Support Services.
6.2. Limited Services Warranty. Licensor warrants that Licensor will perform the Maintenance and Support
Services, including the provision of Maintenance Releases and Major Releases, in professional and
workmanlike manner. If the Maintenance and Support Services fail to conform to this warranty
standard, Licensor shall re-perform the affected Maintenance and Support Services.
6.3. Excluded Cases. Licensee has no warranty rights with respect to (i) any defects or non-conformances
that are caused by modifications or misuse of the Product or (ii) any non-reproducible Software nonconformance.
6.4. Exclusive Remedies.
6.4.1. Non-conforming Products. The warranty remedies expressly provided in Section 6.1
(Limited Product Warranty) are Licensee’s sole and exclusive remedies in respect of nonconforming
products and shall be in lieu of any other rights or remedies Licensee may
otherwise have against Licensor with respect to any non-conformance of the Product.
6.4.2. Non-conforming Services. The warranty remedies expressly provided in Section 6.2
(Limited Services Warranty) are Licensee’s sole and exclusive remedies in respect of nonconforming
services and shall be in lieu of any other rights or remedies Licensee may
otherwise have against Licensor with respect to any non-conformance of the Maintenance and
Support Services. Without limiting the generality of the foregoing, Licensee shall have no right
to a refund of the Support Fee for non-conforming Maintenance and Support Services.
6.5. DISCLAIMER OF WARRANTIES.
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NONINFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS
OR IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT,
SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES
APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO
LICENSEE.

THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE
OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.

THE WARRANTIES IN THIS SECTION 6 (Limited Warranties) ARE PROVIDED SOLELY BY VA.. THE
DISCLAIMERS IN THIS SUBSECTION 6.5 (Disclaimer of Warranties) HOWEVER, ALSO APPLY TO VA’s
SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT
WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY VA’s
WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.

LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT AND MAINTENANCE AND
SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAMMING
DEFECTS WILL BE CORRECTED. NOR DOES LICENSOR WARRANT THAT THE FUNCTIONS
CONTAINED IN THE PRODUCT WILL OPERATE IN THE COMBINATION WHICH MAY BE SELECTED FOR
USE BY LICENSEE (INCLUDING, WITHOUT LIMITATION, USE BY LICENSEE WITH THE DATABASE
SYSTEM (AS DEFINED IN SECTION 2.9)), OR WILL MEET LICENSEE’S REQUIREMENTS.

6.6.
LICENSEE COMPLIANCE WITH LAW. LICENSEE REPRESENTS AND WARRANTS TO LICENSOR THAT,
IN RESPECT OF ITS USE OF THE PRODUCT AND DOCUMENTATION, IT SHALL AT ALL TIMES COMPLY
WITH ALL APPLICABLE LAWS, REGULATIONS, REGULATORY REQUIREMENTS AND CODES OF
PRACTICE (INTERNATIONAL, NATIONAL AND LOCAL) INCLUDING, BUT NOT LIMITED TO, THE DATA
PROTECTION ACT 1998 (INCLUDING ANY AMENDMENTS OR REENACTMENTS OF THE SAME, OR ANY
STATUTORY INSTRUMENTS MADE THEREUNDER).

7. INDEMNIFICATION

Licensee agrees to indemnify and hold harmless VA and Licensor (if Licensor is not VA) from any and all
loss, liability, and expense (including reasonable legal fees and court costs) incurred by VA or Licensor (if
Licensor is not VA) as a result of any claim, demand, or action against Licensor based on, related to, or
arising out of the use of the Product by or on behalf of Licensee.

8. LIMITATIONS OF LIABILITY

8.1. The limitations and exclusions in this Section 8 (Limitation of Liability) apply to the full extent they are
not prohibited by applicable law without the possibility of contractual waiver.
8.2. Circumstances may arise where, because of a default on Licensor’s or VA’s part or other liability,
Licensee is entitled to recover damages from Licensor or VA. Regardless of the basis on which
Licensee is entitled to claim damages from VA (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), VA’s entire liability for all claims in the aggregate
arising from or related to each Product, or Maintenance and Support Service or otherwise arising under
this Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and
damage to real property and tangible personal property and 2) other actual direct damages, up to the
charges (if the Software is subject to fixed term charges, up to twelve months‘ charges) Licensee paid
for the Software or related Maintenance and Support Services that is the subject of the claim.
This limit also applies to any of VA’s, affiliates, Program developers, and suppliers. It is the maximum
for which VA and its affiliates, Software developers, and suppliers are collectively responsible.

8.3 THE LICENSEE AGREES THAT IT SHALL HAVE NO RIGHT TO MAKE A CLAIM AND THE
LICENSOR IS NOT LIABLE TO THE LIECENSEE UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE PRODUCT OR MAINTENANCE AND SUPPORT SERVICES FOR:
A. ANY COST, EXPENSE, COST, LOSS OR DAMAGES OF ANY INDIRECT OR
CONSEQUENTIAL NATURE;
b. ANY LOSS OF PROFIT, USE, GOODWILL, REVENUE, BUSINESS, PRODUCTION,
OPPORTUNITY OR ANTICIPATED SAVING.

9. CONFIDENTIALITY

In connection with this Agreement, each party may have access to Confidential Information owned or
controlled by the other. All such information acquired by either party shall be and remain the disclosing
party’s exclusive property, and the receiving party shall exercise a standard of care with respect to the
handling and protection of such Confidential Information consistent with its own policies concerning
protection of its own Confidential Information of like importance, and in any case at least reasonable care.
Each party shall obligate its Authorised Users (i) to keep any and all such information confidential, (ii) not to
copy or disclose it to any third party without the disclosing party’s prior written approval, (iii) to use such
information only for the purposes of this Agreement, and (iv) to return all
tangible copies of such Confidential Information to the disclosing party promptly upon request or upon
termination of this Agreement. However, each party may disclose Confidential Information of the other party

pursuant to the order or requirement of a court, administrative agency, or as required by applicable law,
provided that so far as lawful the receiving party has given reasonable notice to the other party to contest
such order or requirement. These obligations shall survive for a period of five (5) years following termination
of this Agreement.

10. MISCELLANEOUS

10.1. Assignment. Licensee may not assign this Agreement in whole or in part, without VA’s prior written
consent. Any attempt to do so is void. VA may assign its rights to payments under this Agreement
without obtaining Licensee’s consent. VA may assign this Agreement to a parent or successor entity
without Licensee’s consent.
10.2. Transfer. Licensee may not transfer this Agreement in whole or in part, without VA’s prior written
consent. Any attempt to do so will see the immediate termination of this agreement. In specific cases,
the Licensor may consider a transfer to the vendor if a dispute cannot be resolved.
10.3. Integration. This Agreement, Licensor’s quotation and order acknowledgement, and any other writing
duly signed by an authorised officer of Licensor, shall constitute the entire Agreement between the
parties, and shall supersede and cancel any prior or contemporaneous understandings,
representations or other agreements. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. Without limiting the foregoing, no term or condition in
or referred to in any order or other communication of Licensee shall apply. The parties acknowledge
and agree that in entering into this Agreement they have not relied upon any representation or
statement not contained in this Agreement. However, nothing herein shall operate to exclude liability
for fraudulent misrepresentation.
10.4. This Agreement contains the entire agreement between Licensor and Licensee relating to the licensing
of the Product and supersedes all prior oral or written understanding, arrangements, representations or
agreements between them relating to the subject matter of this Agreement. No amendment, variation or
discharge of this Agreement is valid unless accepted by both parties. Licensor may update the terms of
this Agreement by submitting new licence terms if (i) Licensee orders Additional Authorised Users
pursuant to Section 2.2; (ii) if Maintenance and Support Periods are renewed pursuant to Section 5.3; or
(iii) any Maintenance Release or Major Release is made available pursuant to Part A, Section 2.2 of the
Technical Support Schedule and Licensee shall be obliged to accept such updated terms in the manner
indicated (for example by clicking “I ACCEPT”) before any of (i), (ii), (iii) are implemented.
10.5. Export Control. Licensee agrees to comply with all applicable export and import laws and regulations,
including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to
certain users.
Licensee represents and warrants and that Licensee is neither a Prohibited Person nor owned
or controlled by Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on
the lists published on the Internet website of the U.S. Department of Commerce, Bureau of Industry and
Security, under the section “Lists to Check
(http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm) as amended from time to time,
that is prohibited from acquiring ownership or control of items under this Agreement, or with which
Licensee is prohibited from doing business.
10.6. Force Majeure. Neither Licensee nor VA is responsible for failure to fulfil any obligations due to causes
beyond its control.
10.7. Governing Law and Jurisdiction. The construction, validity and performance of this Agreement will be
governed by and construed in accordance with the laws of England and the parties irrevocably submit
to the exclusive jurisdiction of the English courts. However, Licensor may enforce any judgment
obtained against Licensee in any jurisdiction. The United Nations Convention on Contracts for the
International Sale of Goods does not apply.
10.8. Notices. All notices given by either party to the other pursuant to this Agreement shall be in writing and
shall be mailed by first class, or recorded delivery mail, postage prepaid, or transmitted by hand
delivery (including delivery by courier), or facsimile transmission, or by electronic mail, to the
respective addresses or fax numbers as designated by the parties on Licensee’s purchase order for the
Product, or as may otherwise be specified by notice from either party to the other in accordance with
this Section 10.7.
10.9. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining
provisions of this Agreement remain in full force and effect.
10.10.
No Waiver. Neither the waiver by either party of a breach of, or a default under, any of the provisions
of this Agreement, nor the failure of either party to enforce any of the provisions of this Agreement
shall be construed as a waiver of any subsequent breach or default.
10.11. VA as Third Party Beneficiary.
VA, owner and licensor of the Product and the Intellectual Property
Rights therein is a third party beneficiary of this Agreement and shall be entitled to exercise any rights
of VA or Licensor under this Agreement, or to enforce any of Licensee’s obligations set forth in this
Agreement.
10.12. Language of Agreement. This Agreement is prepared and accepted by Licensee in the English
language, and English shall be the authoritative and governing language of this Agreement for all
purposes.
10.13. Third Party Notices & Third Party Software Licences
(a.) The Software may include third party code that Licensor, not the third party, licenses to Licensee under
this Agreement, called Separately Licensed Code. Notices, if any, for the third party code (“Third Party
Notices”) are included for Licensee’s information only. These notices can be found in the applicable notices
file contained on a CD (“Notices File”) provided with the Product.
(b.) Separately Licensed Code is licensed to Licensee under the terms of the applicable third party license
agreement(s) set forth in the Non-VA License section of the Notices File that accompanies the Product.
Notwithstanding any of the terms in this Agreement, or any other agreement Licensee may have with VA, the
terms of such third party license agreement(s) governs Licensee’s use of all Separately Licensed Code
unless otherwise noted in this Agreement. Future Software updates or fixes may contain additional
Separately Licensed Code. Licensee acknowledges that Licensee has read and agrees to the Separately
Licensed Code section of the Notices File. If Licensee does not agree to the terms of these third party license
agreements, Licensee may not use the Separately Licensed Code. Notwithstanding any of the terms in the
third party license agreement, this Agreement, or any other agreement Licensee may have with VA: (i) VA
provides this Separately Licensed Code to LICENSEE WITHOUT WARRANTIES OF ANY KIND; (ii) VA
DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT
LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE SEPARATELY LICENSED CODE; (iii) VA is not liable to Licensee, and will not
defend, indemnify, or hold Licensee harmless for any claims arising from or related to the Separately
Licensed Code; and (iv.) VA is not liable for any direct, indirect, incidental, special, exemplary, punitive or
consequential damages including, but not limited to, lost data, lost savings, and lost profits, with respect to
the Separately Licensed Code. The provisions of this paragraph do not apply to the extent they are held to be
invalid or unenforceable under the law that governs this Agreement.
10.13. Audit. Licensee agrees to create, retain, and provide to Licensor (or IBM) and its auditors accurate
written records, system tool outputs, and other system information sufficient to provide auditable
verification that Licensee’s use of all Products is in compliance with this Agreement, including, without
limitation, all of VA’s applicable licensing and pricing qualification terms. Licensee is responsible for 1)
ensuring that it does not exceed its Authorised Use, and 2) remaining in compliance with this
Agreement.
Upon reasonable notice, VA may verify Licensee’s compliance with this Agreement at all sites and for
all environments in which Licensee uses (for any purpose) Products subject to this Agreement. Such
verification will be conducted in a manner that minimizes disruption to Licensee’s business, and may
be conducted on Licensee’s premises, during normal business hours. VA may use an independent
auditor to assist with such verification, provided VA has a written confidentiality agreement in place
with such auditor.
VA will notify Licensee in writing if any such verification indicates that Licensee has used any Product
in excess of its Authorised Users or is otherwise not in compliance with this Agreement. Licensee
agrees to promptly pay directly to VA the charges that VA specifies in an invoice for 1) any such excess
use, 2) support for such excess use for the lesser of the duration of such excess use or two years, and
3) any additional charges and other liabilities determined as a result of such verification.
10.14 Business Contact Information. Licensee authorises Licensor, VA, an IBM Company and its parent
company International Business Machines Corporation and its subsidiaries (and their successors and
assigns, contractors and IBM Business Partners) to store and use Licensee’s business contact
information wherever they do business, in connection with the VA products and services, or in
furtherance of Licensor’s business relationship with Licensee. The Licensee also authorises IBM
Company or its parent company International Business Machines Corporation or its subsidiaries (and
their successors and assigns, contractors and IBM Business Partners) to contact Licensee directly for
(i) resolving service issues referred to IBM by the Licensor or that that IBM received directly from the
Licensee; and (ii) monitoring the Licensee satisfaction with Licensor’s service. The Licensee
acknowledges that nothing in this section 10.14 impose any responsibility on IBM to perform any part
of the Licensor obligations which are set forth in this Agreement.
10.15 Dispute resolution. Each party will allow the other reasonable opportunity to comply before it claims
that the other has not met its obligations under this Agreement. The parties will attempt in good faith to
resolve all disputes, disagreements, or claims between the parties relating to this Agreement.
10.16 Statute of Limitations. Unless otherwise required by applicable law without the possibility of
contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any
claim arising out of or related to this Agreement more than two years after the cause of action arose;
and 2) upon the expiration of such time limit, any such claim and all respective rights related to the
claim lapse.
10.17 Waiver of Jury. Each party waives any right to a jury trial in any proceeding arising out of or related to
this Agreement.
10.18 Consumer Rights. Nothing in this Agreement affects any statutory rights of consumers that cannot be
waived or limited by contract.

11. LOST LICENCE PERMITS

11.1. LOST LICENCE PERMITS (SOFTWARE)
11.1.1. A Software-based licence permit is a file based key that Licensor uses to control the
execution of Products. The licence is locked to a particular end user computer or network
server. The options are:
Standalone Licence File: The Standalone Licence File is locked to the user’s personal computer.
This Licence file permits a maximum of one licence of one or more
Products to be run.
Network Licence File: The Network Licence File is locked to a network server or any personal
computer connected in the network. This Licence file manages multiple
licences of one or more Products on a network.
11.1.2. A software-based licence is a computer software file and cannot be lost as Licensor or VA
can resend it. However a software-based licence permit is locked to a particular personal
computer or network server. If that computer is lost or destroyed customer can apply for a
replacement licence locked to a new computer / network server. The supply of replacement
licences is at the discretion of Licensor. You may be asked to provide Licensor with affidavits
and/or other documents in support of a claim for a replacement licence.
11.1.3. Software-based licences can be moved to a new computer / network server within the rules
and process supported by Licensor at that time. The original computer / network server must
be available so that a revocation process and certificate can be created before the licence(s)
can be moved. If it is not possible to carry out this process it will be treated as a lost or
destroyed computer as in Section 11.1.2

Technical Support Schedule

A. MAINTENANCE AND SUPPORT SERVICES
The provisions in this Section A apply in respect of all Maintenance and Support Services, whosoever such
Maintenance and Support Services are provided by.

1. Support Hours
The Maintenance and Support Services shall be provided during Licensor’s normal support hours.
Maintenance and Support Services provided by Licensor shall be provided during Licensor’s normal support
hours which are 8.30 am to 5:30 pm unless otherwise advised in a Support Proposal.

2. Maintenance and Support Services
2.1. Help Desk Support. Licensor shall provide Licensee with a reasonable amount (as determined by
Licensor) of support by telephone and email to assist Licensee with basic troubleshooting and with
understanding the features of the Software and its usage. Help Desk Support for a product version is
subject to Licensor’s then-current published policy.
2.2. Maintenance Releases and Major Releases. Licensor will provide those Maintenance Releases and
Major Releases as upgrades to Licensee that Licensor, at its sole discretion, makes generally available
to all of Licensor’s customers that are then receiving Maintenance and Support Services for such
Product. Licensor reserves the right not to create any Maintenance Releases and Major Releases.
Licensee may use the updated Product provided to Licensee through Maintenance Releases and Major
Releases only in accordance with Section 2 (Grant of Licence and Restrictions) and subject to the other
terms and conditions of this Agreement. Licensee acknowledges that a Maintenance Release or Major
Release as issued by Licensor is supported on a defined set of operating systems as described in the
Documentation for that release, and that Licensee may have to update Licensee’s operating system in
order to use such Maintenance Release or Major Release.
2.3. Error Correction. Licensor shall provide a product patch, workaround, correction in a subsequent
Maintenance Release, or other correctional aids (any of the foregoing, a “Correction”) provided that
Licensor is able to successfully reproduce the suspected error.
2.4. Exclusions. Licensor shall have no obligation to provide Maintenance and Support Services with
respect to (i) errors caused by a use of the Product other than in strict accordance with the
Documentation (ii) Software operating in any environment other than as specified in the Documentation
(iii) any third party products including operating system and database system. Any advice,
recommendation or other services provided by Licensor to Licensee in respect of any third party
products in the course of providing Maintenance and Support Services or otherwise in connection with
Maintenance and Support Services are provided at Licensor’s absolute discretion and Licensee
acknowledges that any such services are provided ‘as is’, in good faith and without charge to Licensee.
Accordingly, Licensor shall not be liable to Licensee, in contract, in tort, or otherwise, for any loss or
damage whatsoever arising whether directly or indirectly in respect of any such services and
Licensee’s reliance on any such services and any actions taken in connection therewith shall be solely
at its own discretion and risk.
2.5. End of Life. In the event Licensor decides to terminate provision of Maintenance and Support Services
for a Product, Licensor will provide prior notice on Licensor’s website.
3. Fault Reporting
3.1. Error reports must be submitted by telephone, fax or by email to the addresses designated by Licensor
for such reports from time to time.
3.2. In reporting an error, Licensee shall supply the following information:
3.2.1. Licensee name, contact name and Licence Permit number;
3.2.2. details of the relevant Software version number and operating system environment;
3.2.3. date, time and description of the error;
3.2.4. all available details necessary for Licensor to replicate the error;
3.2.5. the severity level which Licensee believes is appropriate to the error, and such further
information
as Licensor may request in order to assign a level to it in accordance with clause 2.1 below
(Target Response Times);
3.2.6. such further information as Licensor may reasonably require.
B. MAINTENANCE AND SUPPORT SERVICES PROVIDED BY VA ONLY
The provisions in this Section B apply in respect of Maintenance and Support Services only where such
Maintenance and Support Services are provided by VA.
1. Severity Levels
The level to be allocated to an error is intended to reflect the disruption that it causes to Licensee’s business.
The levels are as follows:
Critical Error:
a major error that prevents end users from using the Software and for which there is no evident
alternative operating procedure.
Material Error:
a significant error that causes the Software not to operate in accordance with the Documentation
but for which there is an alternative operating procedure.
Cosmetic Error:
a minor error that does not prevent the Software operating in accordance with the Documentation
but causes inconvenience to Licensee.
2. Target Response Times
2.1. The “Target Response Time” is the time, following receipt of Licensee’s request and the information
referred to above, by which VA will contact Licensee to discuss the details of the error and assign a
level to the error. If Licensee notifies VA that it disagrees with the level assigned by the helpdesk then
as soon as reasonably practicable VA will procure that VA’s Product Services Support Manager
contacts Licensee. If agreement on the appropriate level is still not reached, the matter will be escalated
in similar fashion to VA’s Board of Directors, whose decision (in the absence of agreement after further
discussion) will be final and binding.
2.2. VA’s Target Response Time for errors is twenty-four (24) hours from Licensee’s notification of an
error being received by VA (save that a request for assistance received overnight or on a weekend or
Public Holiday in England shall be considered received at 09:00 on the next working day).
2.3. VA will use reasonable efforts to achieve the Target Response Time for each error but provided it
uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to Licensee for
failure to achieve such Target Response Time.
3. Target Closure Times
3.1. Upon receipt of notification of a Critical Error, VA shall:
3.1.1. supply a written response, supplementary documentation, or work-around instructions to
alleviate or bypass the Critical Error to Licensee within forty-eight (48) hours of notification of the
Critical Error; and
3.1.2. provide a Correction to the Critical Error within two (2) weeks from the date of notification of
the Critical Error.
3.2. Upon receipt of notification of a Material Error, VA shall;
3.2.1. supply a written response, supplementary documentation, or workaround instructions to
alleviate or bypass the Material Error to Licensee within five (5) working days of notification of the
Material Error; and
3.2.2. provide a Correction to the Material Error within eight (8) weeks from the date of notification
of the Material Error.
3.3. Upon receipt of notification of a Cosmetic Error, VA shall provide a Correction to the Cosmetic
Error to the Licensee in a subsequent release, at the discretion of VA.
3.4. VA will use reasonable efforts to achieve the target times referred to above for each error but
provided it uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to
Licensee for failure to achieve any such target time.
4. Closure
4.1. Errors will be closed in one of the following ways:
4.1.1. Fixed: VA has rectified the error so that all materially adverse effects of the error on
Licensee’s business have ceased.
4.1.2. Fixed at release: VA will investigate the error on the then-current version, and if the problem
is fixed in the current version, the call will be closed. Licensee’s solution is to install the latest
version
4.1.3. Non-replicable error: no solution could be supplied because VA was unable to replicate
the error.
4.1.4. Expected behaviour: the error was alleged by Licensee to show an error but is consistent
with the Product performing in all material respects with the Documentation (i.e. there is no error).
4.1.5. Client closure: Licensee has agreed to allocate a closure category to the error.
4.1.6. Will not reasonably be fixed: VA has assessed the error and it will not be fixed either
because a) this functionality will be replaced or changed in a subsequent release, or b) the cost to
VA of providing a fix is disproportionate to the level of demand from the user community and/or
the value of the Support Fee.
4.1.7. Upon closure of an error in accordance with clause 4.1 above, VA shall have no further
obligation in respect of that particular error.

VA-AMIS Software License Agreement

International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS) and associated software and / or plugins.
Copyright © Visual Analysis 2013
Software Licence Agreement – VA-AMIS
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. THIS LICENSE SUPERCEDES ANY OTHER CLICK AND ACCEPT LICENSE FOR THE PRODUCT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN “ACCEPT” BUTTON, OR USE THE SOFTWARE; AND PROMPTLY RETURN THE UNUSED MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID. IF THE SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE SOFTWARE.
The Software may be made available to Licensee by means of a download or of a file based key (in which case clause 11.1 shall apply).
DEFINITIONS.
1.1. “Authorised User” has the meaning set forth in Section Error! Reference source not found..
1.2. “Confidential Information” means all information of a confidential nature relating to, or to the business and/or other goods or services of, a party to this Agreement; or relating to, or to the business and/or goods and services of, a party’s affiliates or licensors; as well as the terms and conditions of this Agreement (including, without limitation, the Licence Fee and Support Fee). Confidential Information shall include information previously obtained by one party from the other pursuant to a non-disclosure agreement. Confidential Information of Licensor includes, without limitation, confidential information pertaining to the Product and Maintenance and Support Services. Confidential Information includes information in any form, whether or not tangible. Confidential Information shall not include information that (a) is in or enters the public domain without breach of this Agreement through no fault of the receiving party, (b) the receiving party was demonstrably in
possession of prior to first receiving it from the disclosing party, (c) the receiving party can emonstrate was developed by the receiving party independently and without use of, or reference to, the disclosing party’s information, or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a non-disclosure obligation.
1.3. “Documentation” means the manuals and related materials that Licensor ordinarily distributes, at its sole discretion, in softcopy or hardcopy with the Software, and includes documentation Licensor may provide to Licensee in connection with Maintenance and Support Services.
1.4. “Effective Date” means the date the Product was received by Licensee.
1.5. “IBM” means International Business Systems
1.6. “Licence Permit ” means the hardware or software authorisation key that enables an Authorised User to access the Software.
1.7. “ “Intellectual Property Rights” means all patents, copyrights, database right, rights in designs, domain names, trademarks, service marks, icons, trade names, and other proprietary rights, and all applications and registrations therefor, wherever in the world arising or available.
1.8. “Licence Fee” has the meaning set forth in Section 5.1 (Licence Fee).
1.9. “Licensor” means the party who supplies Licensee with the Product in consideration for Licensee’s direct payment of the Licence Fee (whether VA or a third party).
1.10. “Maintenance and Support Services” has the meaning set forth in Section 3 (Maintenance and Support Services). International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS) Page 2 of 11 Copyright © Visual Analysis 2013
1.11. “Maintenance Releases” means those new versions of the Software and the Documentation that contain fault fixes and minor enhancements.
1.12. “Major Release” means a new version of the Software and the Documentation that contains major enhancements and new features.
1.13. “Media” means the physical medium on which the Software is recorded or printed.
1.14. “Product” means, collectively, the Software, the Documentation, the Media, and the Licence Permit licensed to Licensee by Licensor pursuant to this Agreement.
1.15. “Support Fee” has the meaning set forth in Section 5.2(Support Fee).
1.16. “Initial Support Period” has the meaning set forth in Section Error! Reference source not found. (Initial Support Period).
1.17. “Subsequent Support Period” has the meaning set forth in Section 5.3 (Subsequent Support Periods).
1.18. “Truncated Support Period” has the meaning set forth in Section 5.4 (Truncated Support Periods).
1.19. “Software” means the installed set of Licensor computer programs and related file structures in object code format, as well as all programs and file structures contained in Maintenance Releases and Major Releases.
1.20. “Trade Secrets” means any VA or Licensor proprietary technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret (in the sense that its confidentiality affords VA or Licensor a competitive advantage over its competitors), including without limitation, the Software, the VA Semantic Type Library, and all technical and descriptive information pertaining to the Product.
1.21. “User Licence” means a licence that permits one (1) Authorised User to access and use the Product.
1.22. “VA-AMIS” means Visual Analysis ANCAPA Intelligence Matrix solution and associated software and / or plugins. A list of these associated VA-AMIS software and / or plugins are available fromhttps://visualanalysis.com/products/which may be updated from time to time.
1.23. VA” means Visual Analysis, a company incorporated in Australia with the ABN of 24075960075 whose registered office is situated at Surry Hills, Sydney 2010.
GRANT OF LICENCE AND RESTRICTIONS
2.1. Scope of Licence. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee a limited, nonexclusive, non-transferable, sub-licence to access and use the Product through Licensee’s officers, employees, staff, and independent contractors (collectively, “Authorised Users”) who are bound by enforceable written obligations to: (i) treat the Product and Confidential Information of Licensor as confidential (as set forth in Section 9 (Confidentiality); and (ii) use such Product and Confidential Information only on behalf of Licensee for Licensee’s internal business purposes and only in accordance with this Agreement. The number of Authorised Users that may concurrently use the Product is limited to the number of User Licences acquired by Licensee. At no time may the number of Authorised Users concurrently using a Product exceed the maximum number of User Licences for such Product.
2.2. Orders for Additional Authorised Users. Licensee may obtain additional User Licences by requesting a quotation from Licensor, submitting a purchase order, which is subject to Licensor’s acceptance, and paying the applicable Licence Fee and Support Fee. All additional User Licences shall be subject to the terms and conditions of this Agreement. Each purchase order must: (i) specify the Product ordered; (ii) contain a statement incorporating this Agreement by reference; (iii) specify the number of User Licences being ordered; and (iv) specify the total Licence Fee and Support Fee due for those additional User Licences. Licensee agrees to abide by the terms of this Agreement with respect to any additional User Licences ordered. Section 10.2 (Integration) shall apply in respect of Licensee’s purchase order.
2.3. Limited Copy Right. Licensee may make a reasonable number of copies of the Software and the
Documentation solely for backup, archival, or disaster recovery purposes. Any copy that Licensee makes of the Software and Documentation, in whole or in part, is the property of Licensor. Licensee agrees to reproduce and include on any copy of the Software and Documentation, in their entirety and without alteration, all copyright, trademark, or other proprietary rights notices that appear in or on the original.
2.4. Restrictions. Except to the extent expressly permitted by mandatory provisions of applicable law
notwithstanding any contractual agreement to the contrary, Licensee may not: (i) sell, sublicense, lease, rent, loan, assign, convey, distribute or otherwise transfer the Product to or through any third parties (except as otherwise expressly provided in this Agreement); (ii) copy, use, or modify the Product for any purpose or in any manner not expressly permitted in this Agreement; (iii) use or allow use of the Product through any timesharing service, service bureau, network, commercial hosting, or other commercial information technology services or by any other means, by or in the interest of any third party; (iv) use any of the program’s components, files, modules, audio-visual content, or related license materials separately from the Software or (v) permit or encourage any third party to do any of the foregoing.
2.5. No Reverse Engineering / Derivate Works. Except to the extent and for the purposes expressly permitted by mandatory provisions of applicable law notwithstanding any contractual agreement to the contrary, Licensee may not (and may not permit or encourage any third party to) without Licensor’s express written consent: (i) reverse engineer, reverse assemble or reverse compile the Software, or any part thereof, or otherwise attempt International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS)Page 3 of 11 Copyright © Visual Analysis 2013
to derive source code; or (ii) create any alteration, adaptation, modification, translation, improvement or derivative work of the Software or Documentation Licensee may not deconstruct or reverse engineer a Licence Permit in order to access the Software or otherwise attempt to bypass hardware or software authorisation.
2.6. Indemnity for Failure of Licensee to Comply with Licence. Licensee shall be responsible for, and shall indemnify VA and Licensor (if Licensor is not VA) for, all loss arising from any failure of any of Licensee or Authorised Users to comply with the terms and conditions of this Agreement.
2.7. All Rights Reserved. All rights not expressly granted by Licensor in this Agreement are hereby reserved to Licensor.
2.8. Data Protection. Licensee acknowledges and agrees that personal information that is provided to Licensor in connection with this Agreement may be: (i) processed by Licensor in accordance with Licensor’s privacy policy, as may be amended from time to time; (ii) provided to VA where necessary for the purposes of this Agreement, including the provision of Maintenance and Support Services; and (iii) transferred out of the country or other jurisdiction where Licensee or Licensor is located.
2.9. Database System. Licensee acknowledges and agrees that the database system (if applicable) that is connected to the Software (“Database System”) is licensed under a separate licence agreement between Licensee and the provider of the Database System. Licensee acknowledges and agrees that the Database System is governed exclusively by the applicable licence agreement with the provider of the Database System and that such licence agreement is solely between Licensee and the applicable provider and Licensor has no obligation or liability, on any theory of liability, with respect to such Database System. In particular, without limitation, Licensor has no obligation to configure the connection between the Software and the Database System or to provide Maintenance and Support Services for the Database System. In the event Licensee requires that Licensor have access to any third party Database System, then Licensee hereby represents and warrants that it has obtained all necessary third party consents to permit such access. Licensee agrees to hold Licensor harmless against any claims which result from Licensee’s failure to obtain such consent, and Licensor’s access, if required, will be limited to providing the applicable support or other services as required. Licensor will have no further obligation or restriction in connection with such Database System access unless agreed to in writing.
2.10. No Tampering with Database Structure. Except as expressly permitted by the Documentation, Licensee shall not use any means other than the Software to: (i) enter, modify, or delete data in any database supplied by Licensor as part of the Product or generated by the Software; or (ii) modify the structure of any such database. Licensee acknowledges and agrees that breach of this Section 2.10 (No Tampering with Database Structure) is likely to prejudice the integrity of such database and also to result in technical difficulties in installing and implementing future updates of the Product.
2.11. Third Party Software. Licensee acknowledges that the Product “VA-AMIS” includes third party software components supplied by IBM. As licensors of such software component, IBM are third party beneficiaries of this Agreement and are entitled to exercise any rights of Licensor under this Agreement for “VA-AMIS” and to enforce any of Licensee’s obligations set forth in this Agreement.
3. MAINTENANCE AND SUPPORT SERVICES
In consideration for the Support Fee for a Product, Licensor will, during the period to which the Support Fee pertains, provide, or procure VA to provide, the services described in the Technical Support Schedule attached to this Agreement (“Maintenance and Support Services”) for that Product.
If Licensee chooses to obtain Maintenance and Support Services for a Product, Licensee must obtain
Maintenance and Support Services for all User Licences for that Product. If Licensee does not pay the Support Fee for a Product, then Licensor has no obligation to provide Maintenance and Support Services for that Product and this Section 3 (Maintenance and Support Services) shall not (or, as the case may be, shall no longer) apply. If the Licensee chooses not to obtain Maintenance and Support Services for a Product, the agreement between the Licensor and Licensee will be deemed terminated and the Licensee will need to cease using the product within 14 days of notification. Licensee will provide sufficient, free, and safe access to Licensee’s facilities for Licensor to fulfil its obligations. Upon mutual agreement, Licensor or VA may remotely access Licensee’s system to assist Licensee in isolating the software problem cause. In the event Licensee requires that Licensor have access to any third party Database System in connection with Maintenance and Support Services or otherwise,
then Licensee hereby represents and warrants that it has obtained all necessary third party consents to permit such access. Licensee agrees to hold Licensor harmless against any claims which result from Licensee’s failure to obtain such consent, and Licensor’s access, if required, will be limited to providing the applicable support or other services as required. Licensor will have no further obligation or restriction in connection with such Database System access unless agreed to in writing. If required, the Licensee hereby gives permission to IBM to access Licensee’s system or facilities for the purpose of performing program services of its software component.
TERM AND TERMINATION
Term. This Agreement shall be deemed to have commenced on the Effective Date and is effective
until terminated as provided in this Section 4 (“Term and Termination”). Initial Support Period. Licensee will pay Licensor’s then-current Support Fee, concurrently with the License Fee, for each User Licence for the Product in consideration for receiving the Maintenance and Support Services for the period of one (1) year from the Effective Date and Licensor shall provide Maintenance and Support Services for such period (“Initial Support Period”) for that Product. If the Licensee chooses not to obtain Maintenance and Support Services for a Product, the agreement between the Licensor and Licensee will be deemed terminated and the Licensee will need to cease using the product within 14 days of notification. Termination for Cause. Licensor may, at its sole discretion, terminate this Agreement in its entirety with respect to a Product (i.e., the licence granted hereunder and the Maintenance and Support Services), or the Maintenance and Support Services only, effective immediately if (i) Licensee fails to pay the Licence Fee due hereunder for more than fourteen (14) calendar days after Licensor issues a notice to the Licensee that the Licence Fee was overdue; (ii) Licensee has breached or otherwise failed to comply with a material obligation under this Agreement and such breach is irremediable or has continued unremedied for a period of at least thirty (30) calendar days after Licensor issues a notice to Licensee specifying the breach and requiring it to be
remedied; or (iii) after Licensor has provided written notice of a breach described in sub-section (ii), Licensee repeats the same breach within the consecutive twelve (12) months period following the date such notice was first given. Licensor may, at its sole discretion, terminate Maintenance and Support Services for a Product if Licensee fails to comply with a material obligation under the Technical Support Schedule or fails to pay the Support Fee due hereunder for more than fourteen (14) calendar days after receiving a notice from Licensor that the Support Fee is overdue.
Bankruptcy. Licensor may terminate this Agreement immediately if Licensee institutes or consents to any proceedings in insolvency or bankruptcy, Obligations upon Termination. Upon termination of this Agreement for any reason Licensee shall discontinue use of the Product and any portion thereof, and return the Product, Licence Permit, and all Confidential Information to Licensor, or, at Licensor’s option, destroy the Product and all Confidential Information, and all copies or partial copies thereof. Termination of this Agreement does not free either party from any of its obligations under this Agreement that call for performance after the termination date, and termination shall not affect the rights of either party accruing prior to termination. Each party’s right to terminate shall be in addition to
any legal and equitable remedies available to such party. Survival. The provisions of this Agreement which by their terms are intended to survive the termination of this Agreement, including but not limited to, Sections 2.3 (Limited Copy Right), except for the first sentence of that section, 2.4 (Restrictions), 2.5 (No Reverse Engineering / Derivate Works), 2.7 (All Rights Reserved) through
2.8 (Data Protection), 2.9 (Database System), 4 (Term and Termination), 5 (Fees and Payment), 6.5
(Disclaimer of Warranties), 7 (Indemnification), 8 (Limitations of Liability), 9 (Confidentiality) and 10
(Miscellaneous) shall survive any termination of this Agreement.
FEES AND PAYMENT
5.1. Licence Fee. Licensee shall pay Licensor a licence fee per User Licence as specified in Licensor’s quotation (“Licence Fee”).
5.2. Support Fee. Licensee shall pay Licensor a Support Fee per User Licence as specified in Licensor’s quotation for Maintenance and Support Services (“Support Fee”) for the Initial Support Period.
5.3. Subsequent Support Periods. After the Initial Support Period, support for this Agreement may be renewed upon mutual agreement of the parties.
5.4. Truncated Support Periods. If Licensee obtains licences for additional User Licences or Products after the Effective Date, the Subsequent Support Period shall be truncated, as determined by Licensor, so that the terms for Maintenance and Support Services for all licences of the Products held by Licensee coincide (“Truncated Support Period”).
5.5. Support Fee for Truncated Support Period. The Support Fee during a Truncated Support Period shall be prorated by Licensor.
5.6. Reinstatement Fee for Lapsed Period. If, at any time, Licensee discontinues Maintenance and Support Services, the reinstatement of Maintenance and Support Services shall be subject to a reinstatement fee in accordance with Licensor’s then-current policy.
5.7. Invoices. Licensor will invoice to Licensee all Licence Fees and Support Fees and any expenses incurred pursuant to Section 3 (Maintenance and Support Services) or the Technical Support Schedule. Amounts are due upon receipt of invoice and payable within 30 days or as specified in an invoice. Licensee agrees to pay accordingly, including any late payment fees. The Licence Fee (including the Support Fee for the Initial Support Period) shall be invoiced on or after the Effective Date. The Support Fee for each Subsequent Support Period shall be invoiced upon acceptance of Licensee’s purchase order for Maintenance and Support Services for that Subsequent Support Period.
5.8. Taxes. If any authority imposes on the Product or related Maintenance and Support Services a duty, tax, levy, or fee, excluding those based on Licensor’s net income, then Licensee agrees to pay that amount, as specified in an invoice, or supply exemption documentation. Licensee is responsible for any personal property taxes for the Product from the date that Licensee obtains it. If any authority imposes a customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of the Software outside the country in which the original Licensee was granted the license, then Licensee agrees that it is responsible for, and will pay, any amount imposed in addition to the relevant Licence Fee or Support Fee.
5.9. Other Fees. The Licence Fee and the Support Fee are exclusive of charges for all services that are not Maintenance and Support Services. If additional professional services are required by Licensee, including but not limited to, training, consulting, and services required to correct errors or problems caused by Licensee, Authorised Users, Licensee’s hardware, or to perform additional new configuration changes requested by Licensee, such services will be provided under a separate agreement. If Licensee loses or damages a copy of the Product or the Licence Permit, Licensor will provide Licensee with a replacement copy for payment of a reasonable replacement fee in accordance with Licensor’s then-current replacement policy.
LIMITED WARRANTIES
6.1. Limited Product Warranty. Licensor warrants that, for ninety (90) calendar days after the Effective Date (“Warranty Period”), the Software (excluding the Maintenance Releases and Major Releases), when used in its specified operating environment will, when used in accordance with this Agreement, conform to its specifications. If within such Warranty Period any Software fails so to perform, Licensee may (i) return the Product for replacement without charge; or (ii) at Licensor’s sole discretion, request a refund of the Licence Fee actually paid by Licensee in exchange for return of the non-conforming Product. Licensor warrants that, during the Warranty Period, the Media and the Documentation shall be free from defects in materials and workmanship. If, within the Warranty Period, any such defect or deviation in the Media or Documentation appears, Licensee may return the Product to Licensor for replacement without charge. The warranty applies only to the unmodified portion of the Product. Licensee is responsible for the results obtained from the use of the Product and Maintenance and Support Services.
6.2. Limited Services Warranty. Licensor warrants that Licensor will perform the Maintenance and Support Services, including the provision of Maintenance Releases and Major Releases, in professional and workmanlike manner. If the Maintenance and Support Services fail to conform to this warranty standard, Licensor shall re-perform the affected Maintenance and Support Services.
6.3. Excluded Cases. Licensee has no warranty rights with respect to (i) any defects or non-conformances that are caused by modifications or misuse of the Product or (ii) any non-reproducible Software non-conformance.
6.4. Exclusive Remedies.
6.4.1. Non-conforming Products. The warranty remedies expressly provided in Section 6.1 (Limited
Product Warranty) are Licensee’s sole and exclusive remedies in respect of non-conforming products
and shall be in lieu of any other rights or remedies Licensee may otherwise have against Licensor
with respect to any non-conformance of the Product.
6.4.2. Non-conforming Services. The warranty remedies expressly provided in Section 6.2 (Limited
Services Warranty) are Licensee’s sole and exclusive remedies in respect of non-conforming services
and shall be in lieu of any other rights or remedies Licensee may otherwise have against Licensor
with respect to any non-conformance of the Maintenance and Support Services. Without limiting the
generality of the foregoing, Licensee shall have no right to a refund of the Support Fee for nonconforming Maintenance and Support Services.
6.5. DISCLAIMER OF WARRANTIES.
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.THE WARRANTIES IN THIS SECTION 6 (Limited Warranties) ARE PROVIDED SOLELY BY VA. THE DISCLAIMERS IN THIS SUBSECTION 6.5 (Disclaimer of Warranties) HOWEVER, ALSO APPLY TO VA’s SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY VA’s WARRANTY
OBLIGATIONS UNDER THIS AGREEMENT. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT AND MAINTENANCE AND SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAMMING DEFECTS WILL BE CORRECTED. NOR DOES LICENSOR WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL OPERATE IN THE COMBINATION WHICH MAY BE SELECTED FOR
USE BY LICENSEE (INCLUDING, WITHOUT LIMITATION, USE BY LICENSEE WITH THE DATABASE SYSTEM (AS DEFINED IN SECTION 2.9)), OR WILL MEET LICENSEE’S REQUIREMENTS.
6.6. LICENSEE COMPLIANCE WITH LAW. LICENSEE REPRESENTS AND WARRANTS TO LICENSOR THAT, IN RESPECT OF ITS USE OF THE PRODUCT AND DOCUMENTATION, IT SHALL AT ALL TIMES COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, REGULATORY REQUIREMENTS AND CODES OF PRACTICE (INTERNATIONAL, NATIONAL AND LOCAL) INCLUDING, BUT NOT LIMITED TO, THE DATA PROTECTION ACT 1998 (INCLUDING ANY AMENDMENTS OR REENACTMENTS OF THE SAME, OR ANYSTATUTORY INSTRUMENTS MADE THEREUNDER).
7. INDEMNIFICATION
Licensee agrees to indemnify and hold harmless VA and Licensor (if Licensor is not VA) from any and all loss, liability, and expense (including reasonable legal fees and court costs) incurred by VA or Licensor (if Licensor is not VA) as a result of any claim, demand, or action against Licensor based on, related to, or arising out of the use of the Product by or on behalf of Licensee.
8. LIMITATIONS OF LIABILITY
8.1. The limitations and exclusions in this Section 8 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.
8.2. Circumstances may arise where, because of a default on Licensor’s or VA’s part or other liability, Licensee is entitled to recover damages from Licensor or VA. Regardless of the basis on which Licensee is entitled to claim damages from VA (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), VA’s entire liability for all claims in the aggregate arising from or related to each Product, or Maintenance and Support Service or otherwise arising under this Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) other actual direct damages, up to the charges (if the Software is subject to fixed term charges, up to twelve months‘ charges) Licensee paid for the Software or related Maintenance and Support Services that is the subject of theclaim.
This limit also applies to any of VA’s, affiliates, Program developers, and suppliers. It is the maximum for which VA and its affiliates, Software developers, and suppliers are collectively responsible.
8.3 THE LICENSEE AGREES THAT IT SHALL HAVE NO RIGHT TO MAKE A CLAIM AND THE
LICENSOR IS NOT LIABLE TO THE LIECENSEE UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE PRODUCT OR MAINTENANCE AND SUPPORT SERVICES FOR:
A. ANY COST, EXPENSE, COST, LOSS OR DAMAGES OF ANY INDIRECT OR CONSEQUENTIAL
NATURE; B. ANY LOSS OF PROFIT, USE, GOODWILL, REVENUE, BUSINESS, PRODUCTION,
OPPORTUNITY OR ANTICIPATED SAVING.
9. CONFIDENTIALITY
In connection with this Agreement, each party may have access to Confidential Information owned or controlled by the other. All such information acquired by either party shall be and remain the disclosing party’s exclusive property, and the receiving party shall exercise a standard of care with respect to the handling and protection of such Confidential Information consistent with its own policies concerning protection of its own Confidential Information of like importance, and in any case at least reasonable care. Each party shall obligate its Authorised Users (i) to keep any and all such information confidential, (ii) not to copy or disclose it to any third party without the disclosing party’s
prior written approval, (iii) to use such information only for the purposes of this Agreement, and (iv) to return all tangible copies of such Confidential Information to the disclosing party promptly upon request or upon termination of this Agreement. However, each party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or as required by applicable law, provided that so far as lawful the receiving party has given reasonable notice to the other party to contest such order or requirement. These obligations
shall survive for a period of five (5) years following termination of this Agreement.
MISCELLANEOUS
10.1. Assignment. Licensee may not assign this Agreement in whole or in part, without VA’s prior written consent. Any attempt to do so is void. VA may assign its rights to payments under this Agreement without obtaining Licensee’s consent. VA may assign this Agreement to a parent or successor entity without Licensee’s consent.
10.2. Integration. This Agreement, Licensor’s quotation and order acknowledgement, and any other writing duly signed by an authorised officer of Licensor, shall constitute the entire Agreement between the parties, and shall supersede and cancel any prior or contemporaneous understandings, representations or other agreements. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Without limiting the foregoing, no term or condition in or referred to in any order or other communication of Licensee shall apply. The parties acknowledge and agree that in entering into this Agreement they have not relied upon any representation or statement not contained in this Agreement. However, nothing herein shall operate to exclude liability for fraudulent misrepresentation.
10.3. This Agreement contains the entire agreement between Licensor and Licensee relating to the licensing of the Product and supersedes all prior oral or written understanding, arrangements, representations or agreements between them relating to the subject matter of this Agreement. No amendment, variation or discharge of this Agreement is valid unless accepted by both parties. Licensor may update the terms of this Agreement by submitting new licence terms if (i) Licensee orders Additional Authorised Users pursuant to Section 2.2; (ii) if Maintenance and Support Periods are renewed pursuant to Section 5.3; or (iii) any Maintenance Release or Major Release is made available pursuant to Part A, Section 2.2 of the Technical Support Schedule and Licensee shall be obliged to accept such updated terms in the manner indicated (for example by clicking “I
ACCEPT”) before any of (i), (ii), (iii) are implemented.
10.4. Export Control. Licensee agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. Licensee represents and warrants and that Licensee is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published on the Internet website of the U.S. Department of Commerce, Bureau of Industry and Security, under the section “Lists to Check (http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm) as amended from time to
time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Licensee is prohibited from doing business.
10.5. Force Majeure. Neither Licensee nor VA is responsible for failure to fulfil any obligations due to causes beyond its control.
10.6. Governing Law and Jurisdiction. The construction, validity and performance of this Agreement will be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts. However, Licensor may enforce any judgment obtained against Licensee in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
10.7. Notices. All notices given by either party to the other pursuant to this Agreement shall be in writing and shall be mailed by first class, or recorded delivery mail, postage prepaid, or transmitted by hand delivery (including delivery by courier), or facsimile transmission, or by electronic mail, to the respective addresses or fax numbers as designated by the parties on Licensee’s purchase order for the Product, or as may otherwise be specified by notice from either party to the other in accordance with this Section 10.7.
10.8. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
10.9. No Waiver. Neither the waiver by either party of a breach of, or a default under, any of the provisions of this Agreement, nor the failure of either party to enforce any of the provisions of this Agreement shall be construed as a waiver of any subsequent breach or default.
10.10. VA as Third Party Beneficiary. VA, owner and licensor of the Product and the Intellectual Property Rights therein is a third party beneficiary of this Agreement and shall be entitled to exercise any rights of VA or Licensor under this Agreement, or to enforce any of Licensee’s obligations set forth in this Agreement.
10.11. Language of Agreement. This Agreement is prepared and accepted by Licensee in the English language, and English shall be the authoritative and governing language of this Agreement for all purposes.
10.12. Third Party Notices & Third Party Software Licences
(a.) The Software may include third party code that Licensor, not the third party, licenses to Licensee under this Agreement, called Separately Licensed Code. Notices, if any, for the third party code (“Third Party Notices”) are included for Licensee’s information only. These notices can be found in the applicable notices file contained on a CD (“Notices File”) provided with the Product.
(b.) Separately Licensed Code is licensed to Licensee under the terms of the applicable third party license agreement(s) set forth in the Non-VA License section of the Notices File that accompanies the Product. Notwithstanding any of the terms in this Agreement, or any other agreement Licensee may have with VA, the terms of such third party license agreement(s) governs Licensee’s use of all Separately Licensed Code unless otherwise noted in this Agreement. Future Software updates or fixes may contain additional Separately Licensed Code. Licensee acknowledges that Licensee has read and agrees to the Separately Licensed Code section of the Notices File. If Licensee does not agree to the terms of these third party license agreements, Licensee may not use the Separately Licensed Code. Notwithstanding any of the terms in the third party license agreement, this Agreement, or any other agreement Licensee may have with VA: (i) VA provides this Separately Licensed Code to LICENSEE WITHOUT WARRANTIES OF ANY KIND; (ii) VA DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NONINFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SEPARATELY LICENSED CODE; (iii) VA is not liable to Licensee, and will not defend, indemnify, or hold Licensee harmless for any claims arising from or related to the Separately Licensed Code; and (iv.) VA is not liable for any direct, indirect,
incidental, special, exemplary, punitive or consequential damages including, but not limited to, lost data, lost savings, and lost profits, with respect to the Separately Licensed Code. The provisions of this paragraph do not apply to the extent they are held to be invalid or unenforceable under the law that governs this Agreement.
10.13. Audit. Licensee agrees to create, retain, and provide to Licensor and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee’s use of all Products is in compliance with this Agreement, including, without limitation, all of VA’s applicable licensing and pricing qualification terms. Licensee is responsible for 1) ensuring that it does not exceed its Authorised Use, and 2) remaining in compliance with this Agreement. Upon reasonable notice, VA may verify Licensee’s compliance with this Agreement at all sites and for all environments in which Licensee uses (for any purpose) Products subject to this Agreement. Such verification will be conducted in a manner that minimizes disruption to Licensee’s business, and may be conducted on Licensee’s premises, during normal business hours. VA may use an independent auditor to assist with such verification, provided VA has a written confidentiality agreement in place with such auditor. VA will notify Licensee in writing if any such verification indicates that Licensee has used any Product in excess of its Authorised Users or is otherwise not in compliance with this Agreement. Licensee agrees to promptly pay directly to VA the charges that VA specifies in an invoice for 1) any such excess use, 2) support for such excess use for the lesser of the duration of such excess use or two years, and 3) any additional charges and other liabilities determined as a result of such verification.
10.14 Business Contact Information. Licensee authorises Licensor, VA, an IBM Company and its parent company International Business Machines Corporation and its subsidiaries (and their successors and assigns, contractors and IBM Business Partners) to store and use Licensee’s business contact information wherever they do business, in connection with the VA products and services, or in furtherance of Licensor’s business relationship with Licensee.
10.15 Dispute resolution. Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement.
10.16 Statute of Limitations. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of action arose; and 2) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
10.17 Waiver of Jury. Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement.
10.18 Consumer Rights. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
11. LOST LICENCE PERMITS
11.1. LOST LICENCE PERMITS (SOFTWARE)
11.1.1. A Software-based licence permit is a file based key that Licensor uses to control the execution of Products. The licence is locked to a particular end user computer or network server. The options are: Standalone Licence File: The Standalone Licence File is locked to the user’s personal computer. This Licence file permits a maximum of one licence of one or more Products to be run.
Network Licence File: The Network Licence File is locked to a network server or any personal
computer connected in the network. This Licence file manages multiple licences of one or more Products on a network.
11.1.2. A software-based licence is a computer software file and cannot be lost as Licensor or VA can
resend it. However a software-based licence permit is locked to a particular personal computer or
network server. If that computer is lost or destroyed customer can apply for a replacement licence
locked to a new computer / network server. The supply of replacement licences is at the discretion of
Licensor. You may be asked to provide Licensor with affidavits and/or other documents in support of a
claim for a replacement licence. International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS)Page 9 of 11 Copyright © Visual Analysis 2013
11.1.3. Software-based licences can be moved to a new computer / network server within the rules and process supported by Licensor at that time. The original computer / network server must be available so that a revocation process and certificate can be created before the licence(s) can be moved. If it is not possible to carry out this process it will be treated as a lost or destroyed computer as in Section
11.1.2 Technical Support Schedule
A. MAINTENANCE AND SUPPORT SERVICES
The provisions in this Section A apply in respect of all Maintenance and Support Services, whosoever such Maintenance and Support Services are provided by.
1. Support Hours
The Maintenance and Support Services shall be provided during Licensor’s normal support hours. Maintenance and Support Services provided by Licensor shall be provided during Licensor’s normal support hours which are 8.30 amto 5:30 pm Australian eastern standard time (or eastern daylight savings time) Monday to Friday, excluding Public Holidays in Australia.
2. Maintenance and Support Services
2.1. Help Desk Support. Licensor shall provide Licensee with a reasonable amount (as determined by Licensor) of support by telephone and email to assist Licensee with basic troubleshooting and with understanding the features of the Software and its usage. Help Desk Support for a product version is subject to Licensor’s thencurrent published policy.
2.2. Maintenance Releases and Major Releases. Licensor will provide those Maintenance Releases and Major Releases as upgrades to Licensee that Licensor, at its sole discretion, makes generally available to all of Licensor’s customers that are then receiving Maintenance and Support Services for such Product. Licensor reserves the right not to create any Maintenance Releases and Major Releases. Licensee may use the updated Product provided to Licensee through Maintenance Releases and Major Releases only in accordance with Section 2 (Grant of Licence and Restrictions) and subject to the other terms and conditions of this Agreement. Licensee acknowledges that a Maintenance Release or Major Release as issued by Licensor is supported on a defined set of operating systems as described in the Documentation for that release, and that Licensee may
have to update Licensee’s operating system in order to use such Maintenance Release or Major Release.
2.3. Error Correction. Licensor shall provide a product patch, workaround, correction in a subsequent Maintenance Release, or other correctional aids (any of the foregoing, a “Correction”) provided that Licensor is able to successfully reproduce the suspected error.
2.4. Exclusions. Licensor shall have no obligation to provide Maintenance and Support Services with respect to (i) errors caused by a use of the Product other than in strict accordance with the Documentation (ii) Software operating in any environment other than as specified in the Documentation (iii) any third party productsincluding operating system and database system. Any advice, recommendation or other services provided by Licensor to Licensee in respect of any third party products in the course of providing Maintenance and Support Services or otherwise in connection with Maintenance and Support Services are provided at Licensor’s absolute discretion and Licensee acknowledges that any such services are provided ‘as is’, in good faith and without charge to Licensee. Accordingly, Licensor shall not be liable to Licensee, in contract, in tort, or otherwise, for
any loss or damage whatsoever arising whether directly or indirectly in respect of any such services and Licensee’s reliance on any such services and any actions taken in connection therewith shall be solely at its own discretion and risk.
2.5. End of Life. In the event Licensor decides to terminate provision of Maintenance and Support Services for a Product, Licensor will provide prior notice on Licensor’s website.
3. Fault Reporting
3.1. Error reports must be submitted by telephone, fax or by email to the addresses designated by Licensor for such reports from time to time.
3.2. In reporting an error, Licensee shall supply the following information:
3.2.1. Licensee name, contact name and Licence Permit number;
3.2.2. details of the relevant Software version number and operating system environment;
3.2.3. date, time and description of the error;
3.2.4. all available details necessary for Licensor to replicate the error;
3.2.5. the severity level which Licensee believes is appropriate to the error, and such further information as Licensor may request in order to assign a level to it in accordance with clause 2.1 below (Target Response Times);
3.2.6. such further information as Licensor may reasonably require.
B. MAINTENANCE AND SUPPORT SERVICES PROVIDED BY VA ONLY
The provisions in this Section B apply in respect of Maintenance and Support Services only where such Maintenance and Support Services are provided by VA.
1. Severity Levels
The level to be allocated to an error is intended to reflect the disruption that it causes to Licensee’s business. The levels are as follows:
Critical Error: a major error that prevents end users from using the Software and for which there is no evident alternative operating procedure.
Material Error: a significant error that causes the Software not to operate in accordance with the Documentation but for which there is an alternative operating procedure.
Cosmetic Error: a minor error that does not prevent the Software operating in accordance with the Documentation but causes inconvenience to Licensee.
2. Target Response Times
2.1. The “Target Response Time” is the time, following receipt of Licensee’s request and the information referred to above, by which VA will contact Licensee to discuss the details of the error and assign a level to the error. If Licensee notifies VA that it disagrees with the level assigned by the helpdesk then as soon as reasonably practicable VA will procure that VA’s Product Services Support Manager contacts Licensee. If agreement on the appropriate level is still not reached, the matter will be escalated in similar fashion to VA’s Board of Directors, whose decision (in the absence of agreement after further discussion) will be final and binding.
2.2. VA’s Target Response Time for errors is twenty-four (24) hours from Licensee’s notification of an error being received by VA (save that a request for assistance received overnight or on a weekend or Public Holiday inEngland shall be considered received at 09:00 on the next working day).
2.3. VA will use reasonable efforts to achieve the Target Response Time for each error but provided it uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to Licensee for failure to achieve such Target Response Time.
3. Target Closure Times
3.1. Upon receipt of notification of a Critical Error, VA shall:
3.1.1. supply a written response, supplementary documentation, or work-around instructions to alleviate or bypass the Critical Error to Licensee within forty-eight (48) hours of notification of the Critical Error; and 3.1.2. provide a Correction to the Critical Error within two (2) weeks from the date of notification of the Critical Error.
3.2. Upon receipt of notification of a Material Error, VA shall;
3.2.1. supply a written response, supplementary documentation, or workaround instructions to alleviate or bypass the Material Error to Licensee within five (5) working days of notification of the Material Error; and 3.2.2. provide a Correction to the Material Error within eight (8) weeks from the date of notification of the Material Error.
3.3. Upon receipt of notification of a Cosmetic Error, VA shall provide a Correction to the Cosmetic Error to the Licensee in a subsequent release, at the discretion of VA.
3.4. VA will use reasonable efforts to achieve the target times referred to above for each error but provided it uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to Licensee for failure to achieve any such target time.
4. Closure
4.1. Errors will be closed in one of the following ways:
4.1.1. Fixed: VA has rectified the error so that all materially adverse effects of the error on Licensee’s business have ceased.
4.1.2. Fixed at release: VA will investigate the error on the then-current version, and if the problem is fixed in the current version, the call will be closed. Licensee’s solution is to install the latest version
4.1.3. Non-replicable error: no solution could be supplied because VA was unable to replicate the error.
4.1.4. Expected behaviour: the error was alleged by Licensee to show an error but is consistent with the Product performing in all material respects with the Documentation (i.e. there is no error).
4.1.5. Client closure: Licensee has agreed to allocate a closure category to the error.
4.1.6. Will not reasonably be fixed: VA has assessed the error and it will not be fixed either because a) this functionality will be replaced or changed in a subsequent release, or b) the cost to VA of providing a fix is nternational Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS) Copyright © Visual Analysis 2013 Software Licence Agreement – VA-AMIS BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS
AGREEMENT. THIS LICENSE SUPERCEDES ANY OTHER CLICK AND ACCEPT LICENSE FOR THE
PRODUCT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT
AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF
YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK
ON AN “ACCEPT” BUTTON, OR USE THE SOFTWARE; AND PROMPTLY RETURN THE UNUSED
MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM IT WAS
OBTAINED FOR A REFUND OF THE AMOUNT PAID. IF THE SOFTWARE WAS DOWNLOADED,
DESTROY ALL COPIES OF THE SOFTWARE.
The Software may be made available to Licensee by means of a download or of a file based key (in which case clause 11.1 shall apply).
1. DEFINITIONS.
1.1. “Authorised User” has the meaning set forth in Section Error! Reference source not found..
1.2. “Confidential Information” means all information of a confidential nature relating to, or to the business and/or other goods or services of, a party to this Agreement; or relating to, or to the business and/or goods and services of, a party’s affiliates or licensors; as well as the terms and conditions of this Agreement (including, without limitation, the Licence Fee and Support Fee). Confidential Information shall include information previously obtained by one party from the other pursuant to a non-disclosure agreement. Confidential Information of Licensor includes, without limitation, confidential information pertaining to the Product and Maintenance and Support Services. Confidential Information includes information in any form, whether or not tangible. Confidential Information shall not include information that (a) is in or enters the public domain without
breach of this Agreement through no fault of the receiving party, (b) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party, (c) the receiving party can demonstrate was developed by the receiving party independently and without use of, or reference to, the disclosing party’s information, or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a non-disclosure obligation.
1.3. “Documentation” means the manuals and related materials that Licensor ordinarily distributes, at its sole discretion, in softcopy or hardcopy with the Software, and includes documentation Licensor may provide to Licensee in connection with Maintenance and Support Services.
1.4. “Effective Date” means the date the Product was received by Licensee.
1.5. “IBM” means International Business Systems
1.6. “Licence Permit ” means the hardware or software authorisation key that enables an Authorised User to access the Software.
1.7. “ “Intellectual Property Rights” means all patents, copyrights, database right, rights in designs, domain names,trademarks, service marks, icons, trade names, and other proprietary rights, and all applications and registrations therefor, wherever in the world arising or available.
1.8. “Licence Fee” has the meaning set forth in Section 5.1 (Licence Fee).
1.9. “Licensor” means the party who supplies Licensee with the Product in consideration for Licensee’s direct payment of the Licence Fee (whether VA or a third party).
1.10. “Maintenance and Support Services” has the meaning set forth in Section 3 (Maintenance and Support Services).International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS)Page 2 of 11Copyright © Visual Analysis 2013
1.11. “Maintenance Releases” means those new versions of the Software and the Documentation that contain fault fixes and minor enhancements.
1.12. “Major Release” means a new version of the Software and the Documentation that contains major enhancements and new features.
1.13. “Media” means the physical medium on which the Software is recorded or printed.
1.14. “Product” means, collectively, the Software, the Documentation, the Media, and the Licence Permit licensed to Licensee by Licensor pursuant to this Agreement.
1.15. “Support Fee” has the meaning set forth in Section 5.2(Support Fee).
1.16. “Initial Support Period” has the meaning set forth in Section Error! Reference source not found. (Initial Support Period).
1.17. “Subsequent Support Period” has the meaning set forth in Section 5.3 (Subsequent Support Periods).
1.18. “Truncated Support Period” has the meaning set forth in Section 5.4 (Truncated Support Periods).
1.19. “Software” means the installed set of Licensor computer programs and related file structures in object code format, as well as all programs and file structures contained in Maintenance Releases and Major Releases.
1.20. “Trade Secrets” means any VA or Licensor proprietary technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret (in the sense that its confidentiality affords VA or Licensor a competitive advantage over its competitors), including without limitation, the Software, the VA Semantic Type Library, and all technical and descriptive information pertaining to the Product.
1.21. “User Licence” means a licence that permits one (1) Authorised User to access and use the Product.
1.22. “VA-AMIS” means Visual Analysis ANCAPA Intelligence Matrix solution and associated software and / or plugins. A list of these software and / or plugins is available from https://visualanalysis.com/products/which may be updated from time to time.
1.23. VA” means Visual Analysis, a company incorporated in Australia with the ABN of 24075960075 whose registered office is situated at Surry Hills, Sydney 2010.
2. GRANT OF LICENCE AND RESTRICTIONS
2.1. Scope of Licence. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee a limited, nonexclusive, non-transferable, sub-licence to access and use the Product through Licensee’s officers, employees, staff, and independent contractors (collectively, “Authorised Users”) who are bound by enforceable written obligations to: (i) treat the Product and Confidential Information of Licensor as confidential (as set forth in Section 9 (Confidentiality); and (ii) use such Product and Confidential Information only on behalf of Licensee for Licensee’s internal business purposes and only in accordance with this Agreement. The number of Authorised Users that may concurrently use the Product is limited to the number of User Licences acquired by Licensee. At no time may the number of Authorised Users concurrently using a Product exceed the maximum number of User Licences for such Product.
2.2. Orders for Additional Authorised Users. Licensee may obtain additional User Licences by requesting a quotation from Licensor, submitting a purchase order, which is subject to Licensor’s acceptance, and paying the applicable Licence Fee and Support Fee. All additional User Licences shall be subject to the terms and conditions of this Agreement. Each purchase order must: (i) specify the Product ordered; (ii) contain a statement incorporating this Agreement by reference; (iii) specify the number of User Licences being ordered; and (iv) specify the total Licence Fee and Support Fee due for those additional User Licences. Licensee agrees to abide by the terms of this Agreement with respect to any additional User Licences ordered. Section 10.2 (Integration) shall apply in respect of Licensee’s purchase order.
2.3. Limited Copy Right. Licensee may make a reasonable number of copies of the Software and the
Documentation solely for backup, archival, or disaster recovery purposes. Any copy that Licensee makes of the Software and Documentation, in whole or in part, is the property of Licensor. Licensee agrees to reproduce and include on any copy of the Software and Documentation, in their entirety and without alteration, all copyright, trademark, or other proprietary rights notices that appear in or on the original.
2.4. Restrictions. Except to the extent expressly permitted by mandatory provisions of applicable law
notwithstanding any contractual agreement to the contrary, Licensee may not: (i) sell, sublicense, lease, rent, loan, assign, convey, distribute or otherwise transfer the Product to or through any third parties (except as otherwise expressly provided in this Agreement); (ii) copy, use, or modify the Product for any purpose or in any manner not expressly permitted in this Agreement; (iii) use or allow use of the Product through any timesharing service, service bureau, network, commercial hosting, or other commercial information technology services or by any other means, by or in the interest of any third party; (iv) use any of the program’s components, files, modules, audio-visual content, or related license materials separately from the Software or (v) permit or encourage any third party to do any of the foregoing.
2.5. No Reverse Engineering / Derivate Works. Except to the extent and for the purposes expressly permitted by mandatory provisions of applicable law notwithstanding any contractual agreement to the contrary, Licensee may not (and may not permit or encourage any third party to) without Licensor’s express written consent: (i) reverse engineer, reverse assemble or reverse compile the Software, or any part thereof, or otherwise attempt International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS)Page 3 of 11 Copyright © Visual Analysis 2013 to derive source code; or (ii) create any alteration, adaptation, modification, translation, improvement or derivative work of the Software or Documentation Licensee may not deconstruct or reverse engineer a Licence Permit in order to access the Software or otherwise attempt to bypass hardware or software authorisation.
2.6. Indemnity for Failure of Licensee to Comply with Licence. Licensee shall be responsible for, and shall indemnify VA and Licensor (if Licensor is not VA) for, all loss arising from any failure of any of Licensee or Authorised Users to comply with the terms and conditions of this Agreement.
2.7. All Rights Reserved. All rights not expressly granted by Licensor in this Agreement are hereby reserved to Licensor.
2.8. Data Protection. Licensee acknowledges and agrees that personal information that is provided to Licensor in connection with this Agreement may be: (i) processed by Licensor in accordance with Licensor’s privacy policy, as may be amended from time to time; (ii) provided to VA where necessary for the purposes of this Agreement, including the provision of Maintenance and Support Services; and (iii) transferred out of the country or other jurisdiction where Licensee or Licensor is located.
2.9. Database System. Licensee acknowledges and agrees that the database system (if applicable) that is connected to the Software (“Database System”) is licensed under a separate licence agreement between Licensee and the provider of the Database System. Licensee acknowledges and agrees that the Database System is governed exclusively by the applicable licence agreement with the provider of the Database System and that such licence agreement is solely between Licensee and the applicable provider and Licensor has no obligation or liability, on any theory of liability, with respect to such Database System. In particular, without limitation, Licensor has no obligation to configure the connection between the Software and the Database System or to provide Maintenance and Support Services for the Database System. In the event Licensee requires that Licensor have access to any third party Database System, then Licensee hereby represents and warrants that it has obtained all necessary third party consents to permit such access. Licensee agrees to hold Licensor harmless against any claims which result from Licensee’s failure to obtain such consent, and Licensor’s access, if required, will be limited to providing the applicable support or other services as required. Licensor will have no further obligation or restriction in connection with such Database System access unless agreed to in writing.
2.10. No Tampering with Database Structure. Except as expressly permitted by the Documentation, Licensee shall not use any means other than the Software to: (i) enter, modify, or delete data in any database supplied by Licensor as part of the Product or generated by the Software; or (ii) modify the structure of any such database. Licensee acknowledges and agrees that breach of this Section 2.10 (No Tampering with Database Structure) is likely to prejudice the integrity of such database and also to result in technical difficulties in installing andimplementing future updates of the Product.
2.11. Third Party Software. Licensee acknowledges that the Product “VA-AMIS” includes third party software components supplied by IBM. As licensors of such software component, IBM are third party beneficiaries of this Agreement and are entitled to exercise any rights of Licensor under this Agreement for “VA-AMIS” and to enforce any of Licensee’s obligations set forth in this Agreement.

MAINTENANCE AND SUPPORT SERVICES
In consideration for the Support Fee for a Product, Licensor will, during the period to which the Support Fee pertains, provide, or procure VA to provide, the services described in the Technical Support Schedule attached to this Agreement (“Maintenance and Support Services”) for that Product.
If Licensee chooses to obtain Maintenance and Support Services for a Product, Licensee must obtain
Maintenance and Support Services for all User Licences for that Product. If Licensee does not pay the Support Fee for a Product, then Licensor has no obligation to provide Maintenance and Support Services for that Product and this Section 3 (Maintenance and Support Services) shall not (or, as the case may be, shall no longer) apply. If the Licensee chooses not to obtain Maintenance and Support Services for a Product, the agreement between the Licensor and Licensee will be deemed terminated and the Licensee will need to cease using the product within 14 days of notification. Licensee will provide sufficient, free, and safe access to Licensee’s facilities for Licensor to fulfil its obligations. Upon mutual agreement, Licensor or VA may remotely access Licensee’s system to assist Licensee in isolating the software problem cause. In the event Licensee requires that Licensor have access to any third party Database System in connection with Maintenance and Support Services or otherwise,
then Licensee hereby represents and warrants that it has obtained all necessary third party consents to permit such access. Licensee agrees to hold Licensor harmless against any claims which result from Licensee’s failure to obtain such consent, and Licensor’s access, if required, will be limited to providing the applicable support or other services as required. Licensor will have no further obligation or restriction in connection with such Database System access unless agreed to in writing. If required, the Licensee hereby gives permission to IBM to access Licensee’s system or facilities for the purpose of performing program services of its software component.
TERM AND TERMINATION
Term. This Agreement shall be deemed to have commenced on the Effective Date and is effective
until terminated as provided in this Section 4 (“Term and Termination”). Initial Support Period. Licensee will pay Licensor’s then-current Support Fee, concurrently with the License Fee, for each User Licence for the Product in consideration for receiving the Maintenance and Support Services for the period of one (1) year from the Effective Date and Licensor shall provide Maintenance and
Support Services for such period (“Initial Support Period”) for that Product. If the Licensee chooses not to obtain Maintenance and Support Services for a Product, the agreement between the Licensor and Licensee will be deemed terminated and the Licensee will need to cease using the product within 14 days of notification. Termination for Cause. Licensor may, at its sole discretion, terminate this Agreement in its entirety with respect to a Product (i.e., the licence granted hereunder and the Maintenance and Support Services), or the Maintenance and Support Services only, effective immediately if (i) Licensee fails to pay the Licence Fee due hereunder for more than fourteen (14) calendar days after Licensor issues a notice to the Licensee that the Licence Fee was overdue; (ii) Licensee has breached or otherwise failed to comply with a material obligation under this Agreement and such breach is irremediable or has continued unremedied for a period of at least thirty (30) calendar days after Licensor issues a notice to Licensee specifying the breach and requiring it to be
remedied; or (iii) after Licensor has provided written notice of a breach described in sub-section (ii), Licenseerepeats the same breach within the consecutive twelve (12) months period following the date such notice was first given. Licensor may, at its sole discretion, terminate Maintenance and Support Services for a Product if Licensee fails to comply with a material obligation under the Technical Support Schedule or fails to pay theSupport Fee due hereunder for more than fourteen (14) calendar days after receiving a notice from Licensor that the Support Fee is overdue. Bankruptcy. Licensor may terminate this Agreement immediately if Licensee institutes or consents to any proceedings in insolvency or bankruptcy, Obligations upon Termination. Upon termination of this Agreement for any reason Licensee shall discontinue use of the Product and any portion thereof, and return the Product, Licence Permit, and all Confidential Information to Licensor, or, at Licensor’s option, destroy the Product and all Confidential Information, and all copies or partial copies thereof. Termination of this Agreement does not free either party from any of its obligations under this Agreement that call for performance after the termination date, and termination shall not affect the rights of either party accruing prior to termination. Each party’s right to terminate shall be in addition to any legal and equitable remedies available to such party. Survival. The provisions of this Agreement which by their terms are intended to survive the termination of this Agreement, including but not limited to, Sections 2.3 (Limited Copy Right), except for the first sentence of that section, 2.4 (Restrictions), 2.5 (No Reverse Engineering / Derivate Works), 2.7 (All Rights Reserved) through 2.8 (Data Protection), 2.9 (Database System), 4 (Term and Termination), 5 (Fees and Payment), 6.5 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitations of Liability), 9 (Confidentiality) and 10 (Miscellaneous) shall survive any termination of this Agreement.
FEES AND PAYMENT
5.1. Licence Fee. Licensee shall pay Licensor a licence fee per User Licence as specified in Licensor’s quotation (“Licence Fee”).
5.2. Support Fee. Licensee shall pay Licensor a Support Fee per User Licence as specified in Licensor’s quotation for Maintenance and Support Services (“Support Fee”) for the Initial Support Period.
5.3. Subsequent Support Periods. After the Initial Support Period, support for this Agreement may be renewed upon mutual agreement of the parties.
5.4. Truncated Support Periods. If Licensee obtains licences for additional User Licences or Products after the Effective Date, the Subsequent Support Period shall be truncated, as determined by Licensor, so that the terms for Maintenance and Support Services for all licences of the Products held by Licensee coincide (“Truncated Support Period”).
5.5. Support Fee for Truncated Support Period. The Support Fee during a Truncated Support Period shall be prorated by Licensor.
5.6. Reinstatement Fee for Lapsed Period. If, at any time, Licensee discontinues Maintenance and Support Services, the reinstatement of Maintenance and Support Services shall be subject to a reinstatement fee in accordance with Licensor’s then-current policy.
5.7. Invoices. Licensor will invoice to Licensee all Licence Fees and Support Fees and any expenses incurred pursuant to Section 3 (Maintenance and Support Services) or the Technical Support Schedule. Amounts are due upon receipt of invoice and payable within 30 days or as specified in an invoice. Licensee agrees to pay accordingly, including any late payment fees. The Licence Fee (including the Support Fee for the Initial Support Period) shall be invoiced on or after the Effective Date. The Support Fee for each Subsequent Support Period shall be invoiced upon acceptance of Licensee’s purchase order for Maintenance and Support Services for that Subsequent Support Period.
5.8. Taxes. If any authority imposes on the Product or related Maintenance and Support Services a duty, tax, levy, or fee, excluding those based on Licensor’s net income, then Licensee agrees to pay that amount, as specified in an invoice, or supply exemption documentation. Licensee is responsible for any personal property taxes for the Product from the date that Licensee obtains it. If any authority imposes a customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of the Software outside the country in which the original Licensee was granted the license, then Licensee agrees that it is responsible for, and will pay, any amount imposed in addition to the relevant Licence Fee or Support Fee.
5.9. Other Fees. The Licence Fee and the Support Fee are exclusive of charges for all services that are not Maintenance and Support Services. If additional professional services are required by Licensee, including but not limited to, training, consulting, and services required to correct errors or problems caused by Licensee, Authorised Users, Licensee’s hardware, or to perform additional new configuration changes requested by Licensee, such services will be provided under a separate agreement. If Licensee loses or damages a copy of the Product or the Licence Permit, Licensor will provide Licensee with a replacement copy for payment of a reasonable replacement fee in accordance with Licensor’s then-current replacement policy.
6. LIMITED WARRANTIES
6.1. Limited Product Warranty. Licensor warrants that, for ninety (90) calendar days after the Effective Date (“Warranty Period”), the Software (excluding the Maintenance Releases and Major Releases), when used in its specified operating environment will, when used in accordance with this Agreement, conform to its specifications. If within such Warranty Period any Software fails so to perform, Licensee may (i) return the Product for replacement without charge; or (ii) at Licensor’s sole discretion, request a refund of the Licence Fee actually paid by Licensee in exchange for return of the non-conforming Product. Licensor warrants that, during the Warranty Period, the Media and the Documentation shall be free from defects in materials and workmanship. If, within the Warranty Period, any such defect or deviation in the Media or Documentation appears, Licensee may return the Product to Licensor for replacement without charge. The warranty applies only to the unmodified portion of the Product. Licensee is responsible for the results obtained from the use of the Product and Maintenance and Support Services.
6.2. Limited Services Warranty. Licensor warrants that Licensor will perform the Maintenance and Support Services, including the provision of Maintenance Releases and Major Releases, in professional and workmanlike manner. If the Maintenance and Support Services fail to conform to this warranty standard, Licensor shall re-perform the affected Maintenance and Support Services.
6.3. Excluded Cases. Licensee has no warranty rights with respect to (i) any defects or non-conformances that are caused by modifications or misuse of the Product or (ii) any non-reproducible Software non-conformance.
6.4. Exclusive Remedies.
6.4.1. Non-conforming Products. The warranty remedies expressly provided in Section 6.1 (Limited
Product Warranty) are Licensee’s sole and exclusive remedies in respect of non-conforming products
and shall be in lieu of any other rights or remedies Licensee may otherwise have against Licensor
with respect to any non-conformance of the Product.
6.4.2. Non-conforming Services. The warranty remedies expressly provided in Section 6.2 (Limited
Services Warranty) are Licensee’s sole and exclusive remedies in respect of non-conforming services
and shall be in lieu of any other rights or remedies Licensee may otherwise have against Licensor
with respect to any non-conformance of the Maintenance and Support Services. Without limiting the
generality of the foregoing, Licensee shall have no right to a refund of the Support Fee for nonconforming Maintenance and Support Services.
6.5. DISCLAIMER OF WARRANTIES.
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER
RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE WARRANTIES IN THIS SECTION 6 (Limited Warranties) ARE PROVIDED SOLELY BY VA.. THE
DISCLAIMERS IN THIS SUBSECTION 6.5 (Disclaimer of Warranties) HOWEVER, ALSO APPLY TO VA’s
SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT
WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY VA’s WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT AND MAINTENANCE AND SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAMMING DEFECTS WILL BE CORRECTED. NOR DOES LICENSOR WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL OPERATE IN THE COMBINATION WHICH MAY BE SELECTED FOR USE BY LICENSEE (INCLUDING, WITHOUT LIMITATION, USE BY LICENSEE WITH THE DATABASE SYSTEM (AS DEFINED IN SECTION 2.9)), OR WILL MEET LICENSEE’S REQUIREMENTS.
6.6. LICENSEE COMPLIANCE WITH LAW. LICENSEE REPRESENTS AND WARRANTS TO LICENSOR THAT, IN RESPECT OF ITS USE OF THE PRODUCT AND DOCUMENTATION, IT SHALL AT ALL TIMES COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, REGULATORY REQUIREMENTS AND CODES OF PRACTICE (INTERNATIONAL, NATIONAL AND LOCAL) INCLUDING, BUT NOT LIMITED TO, THE DATA PROTECTION ACT 1998 (INCLUDING ANY AMENDMENTS OR REENACTMENTS OF THE SAME, OR ANY STATUTORY INSTRUMENTS MADE THEREUNDER).
7. INDEMNIFICATION
Licensee agrees to indemnify and hold harmless VA and Licensor (if Licensor is not VA) from any and all loss, liability, and expense (including reasonable legal fees and court costs) incurred by VA or Licensor (if Licensor is not VA) as a result of any claim, demand, or action against Licensor based on, related to, or arising out of the use of the Product by or on behalf of Licensee.
8. LIMITATIONS OF LIABILITY
8.1. The limitations and exclusions in this Section 8 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.
8.2. Circumstances may arise where, because of a default on Licensor’s or VA’s part or other liability, Licensee is entitled to recover damages from Licensor or VA. Regardless of the basis on which Licensee is entitled to claim damages from VA (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), VA’s entire liability for all claims in the aggregate arising from or related to each Product, or Maintenance and Support Service or otherwise arising under this Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) other actual direct damages, up to the charges (if the Software is subject to fixed term charges, up to twelve months‘
charges) Licensee paid for the Software or related Maintenance and Support Services that is the subject of the claim. This limit also applies to any of VA’s, affiliates, Program developers, and suppliers. It is the maximum for which VA and its affiliates, Software developers, and suppliers are collectively responsible.
8.3 THE LICENSEE AGREES THAT IT SHALL HAVE NO RIGHT TO MAKE A CLAIM AND THE
LICENSOR IS NOT LIABLE TO THE LIECENSEE UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE PRODUCT OR MAINTENANCE AND SUPPORT SERVICES FOR:
A. ANY COST, EXPENSE, COST, LOSS OR DAMAGES OF ANY INDIRECT OR CONSEQUENTIAL
NATURE;
b. ANY LOSS OF PROFIT, USE, GOODWILL, REVENUE, BUSINESS, PRODUCTION,
OPPORTUNITY OR ANTICIPATED SAVING.
9. CONFIDENTIALITY
In connection with this Agreement, each party may have access to Confidential Information owned or controlled by the other. All such information acquired by either party shall be and remain the disclosing party’s exclusive property, and the receiving party shall exercise a standard of care with respect to the handling and protection of such Confidential Information consistent with its own policies concerning protection of its own Confidential Information of like importance, and in any case at least reasonable care. Each party shall obligate its Authorised Users (i) to keep any and all such information confidential, (ii) not to copy or disclose it to any third party without the disclosing party’s
prior written approval, (iii) to use such information only for the purposes of this Agreement, and (iv) to return all tangible copies of such Confidential Information to the disclosing party promptly upon request or upon termination of this Agreement. However, each party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or as required by applicable law, provided that so far as lawful the receiving party has given reasonable notice to the other party to contest such order or requirement. These obligations
shall survive for a period of five (5) years following termination of this Agreement.
10. MISCELLANEOUS
10.1. Assignment. Licensee may not assign this Agreement in whole or in part, without VA’s prior written consent. Any attempt to do so is void. VA may assign its rights to payments under this Agreement without obtaining Licensee’s consent. VA may assign this Agreement to a parent or successor entity without Licensee’s consent.
10.2. Integration. This Agreement, Licensor’s quotation and order acknowledgement, and any other writing duly signed by an authorised officer of Licensor, shall constitute the entire Agreement between the parties, and shall supersede and cancel any prior or contemporaneous understandings, representations or other agreements. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Without limiting the foregoing, no term or condition in or referred to in any order or other communication of Licensee shall apply. The parties acknowledge and agree that in entering into this Agreement they have not relied upon any representation or statement not contained in this Agreement. However, nothing herein shall
operate to exclude liability for fraudulent misrepresentation.
10.3. This Agreement contains the entire agreement between Licensor and Licensee relating to the licensing of the Product and supersedes all prior oral or written understanding, arrangements, representations or agreements between them relating to the subject matter of this Agreement. No amendment, variation or discharge of this Agreement is valid unless accepted by both parties. Licensor may update the terms of this Agreement by submitting new licence terms if (i) Licensee orders Additional Authorised Users pursuant to Section 2.2; (ii) if Maintenance and Support Periods are renewed pursuant to Section 5.3; or (iii) any Maintenance Release or Major Release is made available pursuant to Part A, Section 2.2 of the Technical Support Schedule and Licensee shall be obliged to accept such updated terms in the manner indicated (for example by clicking “I ACCEPT”) before any of (i), (ii), (iii) are implemented.
10.4. Export Control. Licensee agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. Licensee represents and warrants and that Licensee is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published on the Internet website of the U.S. Department of Commerce, Bureau of Industry and Security, under the section “Lists to Check (http://www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm) as amended from time to
time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Licensee is prohibited from doing business.
10.5. Force Majeure. Neither Licensee nor VA is responsible for failure to fulfil any obligations due to causes beyond its control.
10.6. Governing Law and Jurisdiction. The construction, validity and performance of this Agreement will be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts. However, Licensor may enforce any judgment obtained against Licensee in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
10.7. Notices. All notices given by either party to the other pursuant to this Agreement shall be in writing and shall be mailed by first class, or recorded delivery mail, postage prepaid, or transmitted by hand delivery (including delivery by courier), or facsimile transmission, or by electronic mail, to the respective addresses or fax numbers as designated by the parties on Licensee’s purchase order for the Product, or as may otherwise be specified by notice from either party to the other in accordance with this Section 10.7.
10.8. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
10.9. No Waiver. Neither the waiver by either party of a breach of, or a default under, any of the provisions of this Agreement, nor the failure of either party to enforce any of the provisions of this Agreement shall be construed as a waiver of any subsequent breach or default.
10.10. VA as Third Party Beneficiary. VA, owner and licensor of the Product and the Intellectual Property Rights therein is a third party beneficiary of this Agreement and shall be entitled to exercise any rights of VA or Licensor under this Agreement, or to enforce any of Licensee’s obligations set forth in this Agreement.
10.11. Language of Agreement. This Agreement is prepared and accepted by Licensee in the English language,
and English shall be the authoritative and governing language of this Agreement for all purposes.
10.12. Third Party Notices & Third Party Software Licences (a.) The Software may include third party code that Licensor, not the third party, licenses to Licensee under this Agreement, called Separately Licensed Code. Notices, if any, for the third party code (“Third Party Notices”) are included for Licensee’s information only. These notices can be found in the applicable notices file contained on a CD (“Notices File”) provided with the Product. (b.) Separately Licensed Code is licensed to Licensee under the terms of the applicable third party license agreement(s) set forth in the Non-VA License section of the Notices File that accompanies the Product. Notwithstanding any of the terms in this Agreement, or any other agreement Licensee may have with VA, the terms of such third party license agreement(s) governs Licensee’s use of all Separately Licensed Code unless otherwise noted in this Agreement. Future Software updates or fixes may contain additional Separately Licensed Code.
Licensee acknowledges that Licensee has read and agrees to the Separately Licensed Code section of the Notices File. If Licensee does not agree to the terms of these third party license agreements, Licensee may not use the Separately Licensed Code. Notwithstanding any of the terms in the third party license agreement, this Agreement, or any other agreement Licensee may have with VA: (i) VA provides this Separately Licensed Code to LICENSEE WITHOUT WARRANTIES OF ANY KIND; (ii) VA DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NONINFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SEPARATELY LICENSED CODE; (iii) VA is not liable to Licensee, and will not defend, indemnify, or hold Licensee harmless for any claims arising from or related to the Separately Licensed Code; and (iv.) VA is not liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages including, but not limited to, lost data, lost savings,
and lost profits, with respect to the Separately Licensed Code. The provisions of this paragraph do not apply to the extent they are held to be invalid or unenforceable under the law that governs this Agreement.
10.13. Audit. Licensee agrees to create, retain, and provide to Licensor and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee’s use of all Products is in compliance with this Agreement, including, without limitation, all of VA’s applicable licensing and pricing qualification terms. Licensee is responsible for 1) ensuring that it does not exceed its Authorised Use, and 2) remaining in compliance with this Agreement. Upon reasonable notice, VA may verify Licensee’s compliance with this Agreement at all sites and for all environments in which Licensee uses (for any purpose) Products subject to this Agreement. Such verification will be conducted in a manner that minimizes disruption to Licensee’s business, and may be conducted on Licensee’s premises, during normal business hours. VA may use an independent auditor to assist with such verification, provided VA has a written confidentiality agreement in place with such auditor. VA will notify Licensee in writing if any such verification indicates that Licensee has used any Product in excess of its Authorised Users or is otherwise not in compliance with this Agreement. Licensee agrees to promptly pay directly to VA the charges that VA specifies in an invoice for 1) any such excess use, 2) support for such excess use for the lesser of the duration of such excess use or two years, and 3) any additional charges and other liabilities determined as a result of such verification.
10.14 Business Contact Information. Licensee authorises Licensor, VA, an IBM Company and its parent company International Business Machines Corporation and its subsidiaries (and their successors and assigns, contractors and IBM Business Partners) to store and use Licensee’s business contact information wherever they do business, in connection with the VA products and services, or in furtherance of Licensor’s business relationship with Licensee.
10.15 Dispute resolution. Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement.
10.16 Statute of Limitations. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of action arose; and 2) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
10.17 Waiver of Jury. Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement.
10.18 Consumer Rights. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
11. LOST LICENCE PERMITS
11.1. LOST LICENCE PERMITS (SOFTWARE)
11.1.1. A Software-based licence permit is a file based key that Licensor uses to control the execution of Products. The licence is locked to a particular end user computer or network server. The options are: Standalone Licence File: The Standalone Licence File is locked to the user’s personal computer. This Licence file permits a maximum of one licence of one or more Products to be run. Network Licence File: The Network Licence File is locked to a network server or any personal computer connected in the network. This Licence file manages multiple licences of one or more Products on a network.
11.1.2. A software-based licence is a computer software file and cannot be lost as Licensor or VA can
resend it. However a software-based licence permit is locked to a particular personal computer or
network server. If that computer is lost or destroyed customer can apply for a replacement licence
locked to a new computer / network server. The supply of replacement licences is at the discretion of
Licensor. You may be asked to provide Licensor with affidavits and/or other documents in support of a claim for a replacement licence. International Software Licence Agreement – Visual Analysis ANACAPA Matrix Intelligence Solution (VA-AMIS)Page 9 of 11 Copyright © Visual Analysis 2013
11.1.3. Software-based licences can be moved to a new computer / network server within the rules and process supported by Licensor at that time. The original computer / network server must be available so that a revocation process and certificate can be created before the licence(s) can be moved. If it is not possible to carry out this process it will be treated as a lost or destroyed computer as in Section 11.1.2
Technical Support Schedule
A. MAINTENANCE AND SUPPORT SERVICES
The provisions in this Section A apply in respect of all Maintenance and Support Services, whosoever such Maintenance and Support Services are provided by.
1. Support Hours
The Maintenance and Support Services shall be provided during Licensor’s normal support hours. Maintenance and Support Services provided by Licensor shall be provided during Licensor’s normal support hours which are 8.30 am to 5:30 pm Australian eastern standard time (or eastern daylight savings time) Monday to Friday, excluding Public Holidays in Australia.
2. Maintenance and Support Services
2.1. Help Desk Support. Licensor shall provide Licensee with a reasonable amount (as determined by Licensor) of support by telephone and email to assist Licensee with basic troubleshooting and with understanding the features of the Software and its usage. Help Desk Support for a product version is subject to Licensor’s then current published policy.
2.2. Maintenance Releases and Major Releases. Licensor will provide those Maintenance Releases and Major Releases as upgrades to Licensee that Licensor, at its sole discretion, makes generally available to all of Licensor’s customers that are then receiving Maintenance and Support Services for such Product. Licensor reserves the right not to create any Maintenance Releases and Major Releases. Licensee may use the updated Product provided to Licensee through Maintenance Releases and Major Releases only in accordance with Section 2 (Grant of Licence and Restrictions) and subject to the other terms and conditions of this Agreement. Licensee acknowledges that a Maintenance Release or Major Release as issued by Licensor is supported on a defined set of operating systems as described in the Documentation for that release, and that Licensee may have to update Licensee’s operating system in order to use such Maintenance Release or Major Release.
2.3. Error Correction. Licensor shall provide a product patch, workaround, correction in a subsequent Maintenance Release, or other correctional aids (any of the foregoing, a “Correction”) provided that Licensor is able to successfully reproduce the suspected error.
2.4. Exclusions. Licensor shall have no obligation to provide Maintenance and Support Services with respect to (i) errors caused by a use of the Product other than in strict accordance with the Documentation (ii) Software operating in any environment other than as specified in the Documentation (iii) any third party products including operating system and database system. Any advice, recommendation or other services provided by Licensor to Licensee in respect of any third party products in the course of providing Maintenance and Support Services or otherwise in connection with Maintenance and Support Services are provided at Licensor’s absolute discretion and Licensee acknowledges that any such services are provided ‘as is’, in good faith and without
charge to Licensee. Accordingly, Licensor shall not be liable to Licensee, in contract, in tort, or otherwise, for any loss or damage whatsoever arising whether directly or indirectly in respect of any such services and Licensee’s reliance on any such services and any actions taken in connection therewith shall be solely at its own discretion and risk.
2.5. End of Life. In the event Licensor decides to terminate provision of Maintenance and Support Services for a Product, Licensor will provide prior notice on Licensor’s website.
3. Fault Reporting
3.1. Error reports must be submitted by telephone, fax or by email to the addresses designated by Licensor for such reports from time to time.
3.2. In reporting an error, Licensee shall supply the following information:
3.2.1. Licensee name, contact name and Licence Permit number;
3.2.2. details of the relevant Software version number and operating system environment;
3.2.3. date, time and description of the error;
3.2.4. all available details necessary for Licensor to replicate the error;
3.2.5. the severity level which Licensee believes is appropriate to the error, and such further information as Licensor may request in order to assign a level to it in accordance with clause 2.1 below (Target Response Times);
3.2.6. such further information as Licensor may reasonably require.
B. MAINTENANCE AND SUPPORT SERVICES PROVIDED BY VA ONLY
The provisions in this Section B apply in respect of Maintenance and Support Services only where such Maintenance and Support Services are provided by VA.
1. Severity Levels
The level to be allocated to an error is intended to reflect the disruption that it causes to Licensee’s business. The levels are as follows:
Critical Error: a major error that prevents end users from using the Software and for which there is no evident alternative operating procedure.
Material Error: a significant error that causes the Software not to operate in accordance with the Documentation but for which there is an alternative operating procedure.
Cosmetic Error: a minor error that does not prevent the Software operating in accordance with the Documentation but causes inconvenience to Licensee.
2. Target Response Times
2.1. The “Target Response Time” is the time, following receipt of Licensee’s request and the information referred to above, by which VA will contact Licensee to discuss the details of the error and assign a level to the error. If Licensee notifies VA that it disagrees with the level assigned by the helpdesk then as soon as reasonably practicable VA will procure that VA’s Product Services Support Manager contacts Licensee. If agreement on the appropriate level is still not reached, the matter will be escalated in similar fashion to VA’s Board of Directors, whose decision (in the absence of agreement after further discussion) will be final and binding.
2.2. VA’s Target Response Time for errors is twenty-four (24) hours from Licensee’s notification of an error being received by VA (save that a request for assistance received overnight or on a weekend or Public Holiday in England shall be considered received at 09:00 on the next working day).
2.3. VA will use reasonable efforts to achieve the Target Response Time for each error but provided it uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to Licensee for failure to achieve such Target Response Time.
3. Target Closure Times
3.1. Upon receipt of notification of a Critical Error, VA shall:
3.1.1. supply a written response, supplementary documentation, or work-around instructions to alleviate or bypass the Critical Error to Licensee within forty-eight (48) hours of notification of the Critical Error; and
3.1.2. provide a Correction to the Critical Error within two (2) weeks from the date of notification of the Critical Error.
3.2. Upon receipt of notification of a Material Error, VA shall;
3.2.1. supply a written response, supplementary documentation, or workaround instructions to alleviate or bypass the Material Error to Licensee within five (5) working days of notification of the Material Error; and
3.2.2. provide a Correction to the Material Error within eight (8) weeks from the date of notification of the Material Error.
3.3. Upon receipt of notification of a Cosmetic Error, VA shall provide a Correction to the Cosmetic Error to the Licensee in a subsequent release, at the discretion of VA.
3.4. VA will use reasonable efforts to achieve the target times referred to above for each error but provided it uses reasonable efforts VA will not be in breach of this Agreement or otherwise liable to Licensee for failure to achieve any such target time.
4. Closure
4.1. Errors will be closed in one of the following ways:
4.1.1. Fixed: VA has rectified the error so that all materially adverse effects of the error on Licensee’s business have ceased.
4.1.2. Fixed at release: VA will investigate the error on the then-current version, and if the problem is fixed in the current version, the call will be closed. Licensee’s solution is to install the latest version
4.1.3. Non-replicable error: no solution could be supplied because VA was unable to replicate the error.
4.1.4. Expected behaviour: the error was alleged by Licensee to show an error but is consistent with the Product performing in all material respects with the Documentation (i.e. there is no error).
4.1.5. Client closure: Licensee has agreed to allocate a closure category to the error.
4.1.6. Will not reasonably be fixed: VA has assessed the error and it will not be fixed either because a) this functionality will be replaced or changed in a subsequent release, or b) the cost to VA of providing a fix is disproportionate to the level of demand from the user community and/or the value of the Support Fee.
4.1.7. Upon closure of an error in accordance with clause 4.1 above, VA shall have no further obligation in respect of that particular error. disproportionate to the level of demand from the user community and/or the value of the Support Fee.
4.1.7. Upon closure of an error in accordance with clause 4.1 above, VA shall have no further obligation in respect of that particular error.