BoffinSQL Licence agreement

LICENCE AGREEMENT

NOTICE TO USER: PLEASE READ THIS LICENCE CAREFULLY. BY DOWNLOADING AND/OR USING ALL OR ANY PORTION OF THE SOFTWARE AND/OR USING A SUPPLIED ENCRYPTED KEY YOU ("LICENCEE") ACCEPT THE FOLLOWING TERMS FROM BOFFIN ASSOCIATES ("BOFFIN"). YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENCE. YOU AGREE THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED LICENCE SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, DO NOT USE THE SOFTWARE AND/OR ENCRYPTED KEY.

1. DEFINITIONS

1.1 "Documentation" means the electronic and/or hard copy user manual supplied with the Software and/or on the media on which the Software is supplied.

1.2 "Effective Date" means the date of invoice or date of payment, whichever is the earlier.

1.3 "Minimum Requirements" means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation, including, without limitation, the prior installation of Oracle® client software and OLE DB and Microsoft® Excel® on each of the PCs and/or laptops on which the Software is used.

1.4 "Permitted Number" means the number, agreed by Boffin  as evidenced in writing or by email, of PCs and/or laptops on which the Licencee is permitted to install the Software.

1.5 "Software" means the object code form of the software with which this Licence Agreement is provided or the software in respect of which the encrypted key is provided, as appropriate, together with any bug fixes, enhancements, or other modifications of the Software provided to Licencee under a separate maintenance agreement between the parties.

2. GRANT OF RIGHTS; RESTRICTIONS

2.1 Subject to all the terms and conditions of this Licence Agreement, Boffin  hereby grants Licencee a perpetual (terminable only as provided in Clause 5.1), worldwide, nonexclusive, nontransferable, paid-up Licence to install and use the Software on the Permitted Number of PCs and/or laptops for its own internal use only. This Licence is in respect of use of the Software by the Licencee only and no subsidiaries or holding company of the Licencee may use the Software.

2.2 Except as expressly permitted in this Licence Agreement, Licencee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form; (iii) distribute, subLicence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licencee's right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of Boffin  affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Licence Agreement.

2.3 Licencee agrees, subject to reasonable prior notice, to give Boffin  such access and assistance to Licencee's systems as may be necessary to confirm the number of users does not exceed the Permitted Number.

3. PROPRIETARY RIGHTS

Boffin  has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence Agreement conveys a limited Licence to use the Software and shall not be construed to convey title to or ownership of the Software to Licencee. All rights in and to the Software not expressly granted to Licencee are reserved by Boffin.

4. LICENCE FEE

In consideration for the Licence for the Permitted Number granted to Licencee hereunder, Licencee shall pay Boffin a one-time nonrefundable Licence fee in accordance with Boffin's Licence fee charges as published from time to time or as otherwise agreed between Licencee and Boffin as evidenced in writing or by email. Such Licence fee shall be due and payable on the date that the Licencee accepts this Licence Agreement. Such Licence fee is exclusive of VAT or other sales tax. If any applicable law requires Licencee to withhold amounts from any payments to Boffin hereunder, (i) Licencee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Boffin with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by Licencee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Boffin  receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Boffin would have received and retained in the absence of such required deduction or withholding.

5. TERM AND TERMINATION

5.1 This Licence Agreement shall commence on the Effective Date and continue in effect indefinitely, unless terminated in accordance with this Clause 5.1. If either party breaches this Licence Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party's receipt of such notice, this Licence Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).

5.2 Upon any termination of this Licence Agreement, (a) the rights and Licences granted to Licencee herein shall terminate; (b) Licencee shall cease all use of the Software; (c) Licencee shall return to Boffin all copies of the Software and Documentation in Licencee's possession or under its control; and (d) Licencee shall certify in writing to Boffin its compliance with the foregoing. Clauses 1, 3, 4 (to the extent of unpaid obligations), 5.2, 6, 7 and 8 shall survive any termination of this Licence Agreement.

6. REPRESENTATIONS AND WARRANTIES

6.1 Boffin warrants that the Software will function materially in accordance with the Documentation for a period of ninety (90) days from the Effective Date. Boffin shall have no obligation to provide ongoing support or maintenance services to Licencee unless the parties enter into a separate maintenance agreement.

6.2 The above warranty is conditional upon the Licencee complying with the Minimum Requirements.

6.3 THE WARRANTIES SET FORTH IN THIS CLAUSE 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE, ALL OF WHICH ARE HEREBY EXCLUDED AND DISCLAIMED.

6.4 The Licencee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.

7. LIMITATION OF LIABILITY

7.1 LICENCEE'S SOLE REMEDY WITH RESPECT TO ANY CLAIMS ARISING OUT OF THIS LICENCE AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE MONIES PAID BY LICENCEE TO BOFFIN UNDER THIS LICENCE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

7.2 IN NO EVENT SHALL BOFFIN BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND GOODWILL, BUSINESS OR BUSINESS BENEFIT, OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY LICENCEE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CIRCUMSTANCES SHALL BOFFIN BE LIABLE FOR ANY FAILURE OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR AT ALL, RESULTING FROM A FAILURE BY THE LICENCEE TO COMPLY WITH THE MINIMUM REQUIREMENTS. ADDITIONALLY, LICENCEE ACKNOWLEDGES THAT WHILST THE SOFTWARE MAY BE USED IN COMBINATION WITH THIRD PARTY SOFTWARE, BOFFIN BEARS NO LIABILITY, HOWSOEVER ARISING, FOR ANY LOSS, DAMAGE OR COST THAT ARISES FROM A FAILURE OF THE SOFTWARE TO INTEGRATE WITH LICENCEE OR THIRD PARTY SOFTWARE.

8. GENERAL

8.1 Licencee shall not assign this Licence Agreement, in whole or in part, without the written consent of Boffin.

8.2 This Licence Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.

8.3 Licencee agrees that because of the unique nature of the Software and Boffin's proprietary rights therein, a demonstrated breach of this Licence Agreement by Licencee would irreparably harm Boffin and monetary damages would be inadequate compensation. Therefore, Licencee agrees that Boffin shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.

8.4 If any provision of this Licence Agreement or the Software thereof is declared void, illegal, or unenforceable, the remainder of this Licence Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

8.5 Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party's right thereafter to enforce each and every term and condition of this Licence Agreement.

8.6 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

8.7 This Licence Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by Licencee shall supersede this Licence Agreement.

8.8 If you do not agree to the terms of this Licence Agreement, you may obtain a refund of the amount paid for the Software if you: (a) do not use the Software and the accompanying items (including all electronic materials, documents etc) and (b) notify Boffin in writing of your non acceptance of this Licence Agreement, with proof of payment, at the address set out below within 30 days of the purchase date.