Caliach Licence Agreement

SOFTWARE AND SUPPORT LICENCE - OBSOLETE FROM 8th March 2013

This document is for Historical Reference Purposes Only

Prior to using the Software (as defined below) you must complete and return to Caliach Limited ("the Licensor") the Customer Registration Form. You are not entitled to use the Software and will not be entitled to support or updates or to receive replacements for defective media until it has been received by the Licensor.

The Licensor is authorized to license and support the software referred to in the attached License Order Form ("the Software") which the Licensee has selected to run on its computer system ("the System"). Upon execution of this Agreement by the Licensee, the Licensee accepts a non-exclusive, non-transferable Licence to "Use" (as hereinafter defined) the Software on the System by the number of concurrent users all as specified in the Schedule for the duration of the Licence. Upon execution of this Agreement by the Licensor, the Licensor grants to the Licensee a non-exclusive, non-transferable licence as specified above and undertakes to support the Software all upon the terms and subject to the conditions contained in this Agreement.

1. Grant of Licence

Grant of this Software Licence entitles the Licensee to:

1.1 receive the number of copies of the Software as set out on the Licence Order Form for Use on the System together with the necessary documentation to install and Use the same;

1.2 an initialisation "licence key" to enable the Licensee to load, install and Use the Software by the number of concurrent users specified on the Licence Order Form;

1.3 Use the Software in accordance with the provisions of Clause 4 of this Agreement;

1.4 use of the Licensor’s Annual Telephone and Software Support;

1.5 receive the Licensor's bulletin reports of errors and "patches" and receive such new updates of the Software incorporating the same; and

1.6 receive information on upgraded versions of the Software at such cost (if any) as may be notified to the Licensee.

For the purposes of this Agreement, upgraded versions of the Software shall mean enhancements, improvements or modifications to the Software.

2. Support Provided under this Agreement shall include:

2.1 telephone support and bug and feature enhancement in accordance with the Telephone Support and Software Maintenance Agreement terms and conditions annexed as Schedule 1;

2.2 correction of critical errors or assistance to overcome problems. The Licensor may, in its sole discretion, correct errors by "patch" or by new version;

2.3 information on availability of new versions of Software.

3. Issue and Use of Software

3.1 Upon execution and return of this Agreement and payment of the first annual Licence Fee, the Licensor shall issue to the Licensee the licence key authentication instructions together with the necessary documentation to Use the same. Access to and use of the Software by the Licensee shall be limited to no more than the designated number of Users specified in the Customer Registration Form.

3.2 Where the licence key enables the Software to be customised for Use by both the Licensee and such other trading entities or companies as nominated by the Licensee on the installation of the Software ("Nominated Named Users") the authority to Use the Software conferred by this Licence shall extend to the Nominated Named Users for such time only as they operate from the same manufacturing location as the Licensee ("the Common Site"). Continued Use of the Software by any Nominated Named User which has ceased to operate from the Common Site shall require such Nominated Named User to enter into a separate licence agreement with the Licensor.

3.3 For the purposes of this Agreement "Use" shall mean and include:

3.3.1 utilization of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk, CD ROM or other storage device) of the System for the processing of the System instructions or statements contained in such Software;

3.3.2 merging the whole or any part of the Software in machine-readable form into another software program;

3.3.3 storing the whole or any part of the Software on the System or other storage unit or disk;

3.4 For the purposes of this Licence "concurrent use" shall mean simultaneous use of the Software by the number of users of the Licensee and, where relevant, the Nominated Named Users, specified in the Licence Order Form. Additional concurrent users may be added by signing a separate licence agreement.

4. Licence Fee

4.1 The Licence Fee as set out in the Licence Order Form entitles the Licensee to Use the Software for the configuration and number of concurrent users as detailed therein and to support as set out in clause 2 for the stated period (if paying on a rental basis, such period being the month or quarter paid in advance). At the end of that period, the Licence shall automatically expire and the Software shall be rendered unusable to the Licensee until such time as the Licensee renews the Licence by payment of the renewal Licence Fee and/or Annual Support Fee as required by the Licensor.

4.2 The Licence Fee is payable in advance unless otherwise agreed in writing by the Licensor and may be subject to annual review upon thirty (30) days prior written notice from the Licensor. Such reviewed fee shall take effect from renewal of the Licence. The Licensee may be subject to an additional charge upon issue to the Licensee of upgraded versions of the Software. Such additional charge for upgrades shall become payable within thirty (30) days of issue unless the Licensee has returned the upgrade unused to the Licensor within such period.

4.3 An additional Licence Fee is payable in respect of additional concurrent users in excess of the number specified on the Licence Order Form. In the event that the System is inoperable or requires or is under repair, the Licensee shall report the same to the Licensor for permission to Use the Software on a back-up system at no extra charge, until the System is operational.

4.4 The telephone support charge is covered by the Licence Fee.

4.5 All charges hereinbefore referred to are exclusive of and net of any taxes, duties or such other additional sums including, but without prejudice to the foregoing generality, value added or purchase tax, excise tax, tax on sales, property or use; import or other duties, whether levied in respect of this Agreement, the Software, its use or otherwise.

4.6 The Licensee may request in writing access for a change in the software configuration or number of concurrent users from that stated in the Licence Order Form. The Licensor shall evaluate such requests and respond to the Licensee with approval or disapproval of the request, together with a quote for any additional set-up or ongoing costs to the Licensee for the change. On acceptance by the Licensee, the Licensor shall provide such access as agreed for the remainder of the term and the Licensee shall pay the Licensor the additional amount agreed.

5. Software Support and Enhancement

5.1 The Licensor offers support and enhancement of the Software in accordance with the provisions of this Agreement and the Telephone Support and Software Maintenance Agreement terms and conditions annexed as Schedule 1. As part of such support, the Licensor may provide the Licensee with support or diagnostic software (the "Support Software") and in such an event the Support Software shall be subject to the terms of the licence granted in accordance with Clause 1 above but the extent of support activities only.

5.2 Where the Software is dependent on another software or other products, the Licensee cannot have support services in respect of the Software without also having such services with respect to the software or other product upon which it depends.

5.3 The Licensor shall charge for services requested by the Licensee which are not specifically covered by this Agreement in the event that the Licensor agrees to provide such services (such agreement to be in the absolute discretion of the Licensor).

6. Licensee's Undertakings

6.1 The Licensee undertakes not to perform any of the acts referred to in this clause 6.1 except to the extent and only to the extent permitted by the applicable law to the Licensee as a lawful user (i.e. a party with an express right to use) of the Software and only then for the specific limited purposes stated in such applicable law or hereunder. The Licensee undertakes:

6.1.1 not to copy the Software (other than for normal system operation and as specified in Clause 3 above) or the Support Software (other than for normal support activities) nor otherwise reproduce the same provided that the Licensee may copy the Software for back-up purposes or incidentally, in the course of converting the Software in accordance with clause 6.1.3 below;

6.1.2 not to translate, adapt, vary, modify the Software or Support Software;

6.1.3 not to disassemble, decompile or reverse engineer the Software or Support Software provided however that in the case of decompilation of the Software, the Licensee may incidentally decompile the Software only if it is essential so to do in order to achieve interoperability of the Software with another software program ("Permitted Purpose") and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party whom it is not necessary to disclose or communicate such information without the Licensor's prior written consent and is not used to create any software which is substantially similar to the expression of the Software nor used in any manner which would be restricted by copyright.

In addition, the Licensee undertakes:

6.2 to maintain accurate and up-to-date records of the number and location of all copies of the Software and Support Software;

6.3 to supervise and control Use of the Software and Support Software in accordance with the terms of this Agreement;

6.4 to replace the current version of the Software and Support Software with the upgraded version forthwith upon receipt;

6.5 to reproduce and include the copyright notice of the Licensor on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software and Support Software made herein;

6.6 not to provide or otherwise make available the Software or Support Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the Licensee's employees, or where relevant employees of the Nominated Named Users, without prior written consent from the Licensor;

6.7 within fourteen (14) days after the date of termination or discontinuance of this Agreement for whatever reason (other than with respect to support only), to return or destroy (as the Licensor shall instruct) the Software and, in the event of termination of support, the Support Software and all copies, in whole and in part, in any form including partial copies or modifications of the Software or Support Software received from the Licensor or made in connection with this Agreement and all documentation relating thereto and to furnish the Licensor with a certificate, certifying that the same has been done, unless the Licensee has obtained the Licensor's prior written authorization to retain one copy for archive purposes only.

7. Support not Included and which shall be Charged for

The Software Support as set out in this Agreement shall not include the following items, all of which shall (if requested by the Licensee) be charged to the Licensee by the Licensor in addition to the Licence Fee:

7.1 support of other software, accessories, attachments, machines, systems or other devices not supplied by the Licensor nor listed in the Schedule;

7.2 rectification of lost or corrupted data arising for any reason other than the Licensor's own negligence;

7.3 support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Software or the System or operating environment;

7.4 attendance to faults caused by using the Software outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Software; or caused by operator error or omission;

7.5 diagnosis and/or rectification of problems not associated with the Software;

7.6 customisation or rewriting of the Software at the Licensee’s request.

8. Warranty

8.1 The Licensee acknowledges that software in general is not error-free and agrees that the existence of such errors shall not constitute a breach of this Agreement.

8.2 In the event that the Licensee discovers a material error which substantially affects the Licensee's use of the same and notifies the Licensor of the error within 90 days from the date of this Licence (the "warranty period") the Licensor shall at its sole option either refund the licence fee or use all reasonable endeavours to correct by patch or new release (at its option) that part of the Software which does not so comply PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Software not performed by the Licensor or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.

8.3 To the extent permitted by the applicable law, the Licensor disclaims all other warranties with respect to the Software and Support Software, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.

8.4 Although the Licensor does not warrant that the Software supplied hereunder shall be free from all known viruses it has used commercially reasonable efforts to check for the most commonly known viruses prior to packaging but the Licensee is solely responsible for virus scanning the Software.

9. Licensor's Liability

9.1 The Licensor shall not be liable to the Licensee for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Software, the Support Software, its use, support or otherwise, except to the extent to which is unlawful to exclude such liability under the applicable law.

9.2 Notwithstanding the generality of clause 9.1above, the Licensor expressly excludes liability for consequential loss or damage which may arise in respect of the Software, the Support Software, its use, the System or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.

9.3 In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and the Licensor becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the annual Licence Fee.

9.4 The Licensor does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of the Licensor, its employees, agents or authorized representatives.

10. Copyright, Patents, Trade Marks and Other Intellectual Property Rights

10.1 The Licensee acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software or the Support Software shall be and remain the sole property of the Licensor or such other party as may be identified therein or thereon (the "Owner"). The Licensee shall not during or at any time after the expiry or termination of this Agreement (whether in whole or with respect to support only) in any way question or dispute the ownership by the Licensor or the Owner thereof.

10.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement or if the Licensor customises or rewrites the Software at the request of the Licensee, the Licensee acknowledges the same shall be the property of the Licensor unless otherwise agreed in writing by the Licensor.

10.3 The Licensee shall indemnify the Licensor fully against all liabilities, costs and expenses which the Licensor may incur as a result of work done in accordance with the Licensee's specifications involving infringement of any patent or other proprietary right.

10.4 The Licensee acknowledges and agrees that the Licensor and/or its licensors own all intellectual property rights in the Software and the services provided under this Agreement. Except as expressly stated herein, this Agreement does not grant the Licensee any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered) or any other rights or licences in respect of the Software, Services or any related documentation.

11. Indemnity

11.1 The Licensor agrees to indemnify and save harmless and defend at its own expense the Licensee from and against any and all claims of infringement of copyright, patents, trade marks, industrial designs, or other intellectual property rights affecting the Software and/or the Support Software as the case may be (and for the purposes of this clause the term Software shall be deemed to include Support Software) PROVIDED THAT (i) the Licensee shall not have done, permitted or suffered to be done anything which may have been or become an infringement of any rights in any copyright, patent, trade mark or other rights as hereinbefore provided, and (ii) the Licensee shall have exercised a reasonable standard of care in protecting the same; failing which the Licensee shall indemnify the Licensor or the Owner against all actions, proceedings, costs, claims and expenses incurred in respect thereof.

11.2 The Licensee undertakes that the Licensor shall be given prompt notice of any claim specified in clause 11.1 above that is made against the Licensee and the Licensor shall have the right to defend any such claims and make settlements thereof at its own discretion and the Licensee shall give such assistance as the Licensor may reasonably require to settle or oppose any such claims.

11.3 In the event that any such infringement occurs or may occur, the Licensor may at its sole option and expense:

11.3.1 procure for the Licensee the right to continue using the Software or infringing part thereof; or

11.3.2 modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or

11.3.3 replace the Software or infringing part thereof by other software of similar capability; or

11.3.4 repay to the Licensee the licence fee relating to the whole or the infringing part of the Software.

12. Confidential Information

12.1 All information, data, drawings, specifications, documentation, software listings, source or object code which the Licensor may have imparted and may from time to time impart to the Licensee relating to the Software, Support Software (other than the ideas and principles underlying the same) or support documentation or procedures is proprietary and confidential. The Licensee hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement disclose the same, whether directly or indirectly to any third party without the Licensor's prior written consent.

12.2 The Licensee further agrees that it shall not itself or through any subsidiary, agent or third party modify, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or any supporting software or have any software or other program written or developed for it based on any confidential information supplied to it by the Licensor.

12.3 The foregoing provisions shall not prevent the disclosure or use by the Licensee of any information which is or hereafter, through no fault of the Licensee, becomes public knowledge or to the extent permitted by law.

13. Force Majeure

The Licensor shall be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of the Licensor which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, Support Software, materials or support; the breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).

14. Termination

14.1 In addition to provisions for termination as herein provided, the Licensor may by notice in writing to the Licensee terminate this Agreement, in whole or at the Licensor's sole option, if any of the following events shall occur, viz.:

14.1.1 if the Licensee is in breach of any term, condition or provision of this Agreement or required by applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from the Licensor; or

14.1.2 if the Licensee, being a body corporate shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation) shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts.

14.2 Upon termination, the Licensee shall pay to the Licensor all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the Software, Support Software or support generally, this Agreement or otherwise.

14.3 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Agreement or in Law.

15. Assignment

The Licensee shall not assign or otherwise transfer all or part of the Software or this Agreement without the prior written consent of the Licensor.

16. Waiver

Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party's rights to take subsequent action.

17. Headings

The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of these terms and conditions of this Agreement.

18. Severability

In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.

19. Notices

Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent shall be deemed to be served 2 days following the date of posting.

20. Contract (Rights of Third Parties) Act 1999

Nothing in this Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to this Agreement. The application of the Contract (Rights of Third Parties) Act 1999 to this Agreement is hereby excluded.

21. Law

The parties hereby agree that the Agreement concluded between them and constituted on these terms and conditions shall be construed in accordance with English Law.

Schedule 1

Amended 19/Sep/2007 (4.1 ammended, 4.6 and 10.4 added)

Amended 17/Feb/2002 and 7/May/2003

QA: RLC05