Software license agreement: NXPowerLite for File Servers
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 “Files” means each of Microsoft Word, Excel, PowerPoint and JPEG files.
1.4 “Licence Fee” means the one-time, nonrefundable licence fee payable by the Licensee to Neuxpower, which shall be calculated in accordance with the Permitted Number at Neuxpower’s licence fee charges as published from time to time, or as otherwise agreed between Licensee and Neuxpower as evidenced in writing or by e-mail.
1.5 “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.
1.6 “Permitted Number” means the number agreed by Neuxpower, as evidenced in writing or by e-mail, of Servers containing Files for which the Software is Used. For the avoidance of doubt, the Permitted Number shall not include any Servers in the Testing Environment and shall not include the Server which hosts the Software if such Server does not itself Use the Software.
1.7 “Software” means the object code form of the software with which this Licence Agreement is provided together with any bug fixes, enhancements, or other modifications of the Software provided to Licensee under a separate maintenance agreement between the parties.
1.8 “Testing Environment” means the part of the Licensee’s organisation in which the Software will be tested and/or developed.
1.9 “Use” and “Used” means the use of the Software run as a batch process to search through a configurable set of directories, optimizing the Files found and replacing the original Files with optimized versions. For the avoidance of doubt the Software must not be adapted to run constantly or to optimize files 'on demand' (for example as they are uploaded to or downloaded from a file server).
1.10 “Server” and “Servers” means any hardware or virtual system that has an operating system. For the avoidance of doubt this specifically excludes any hardware or virtual system that does not have an operating system or any SAN (Storage Attached Network) or NAS (Network Attached Storage) storage device.
2. Grant of rights; restrictions
2.1 Subject to all the terms and conditions of this Licence Agreement, Neuxpower hereby grants Licensee 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 Servers (including virtual Servers) for its own internal business use only; and
- any number of Servers (including virtual Servers) within the Testing Environment for its own internal Use and for the purposes of testing and development only.
2.2 This licence is in respect of Use of the Software by the Licensee and/or by any subsidiary, holding company or subsidiary of any holding company of the Licensee and/or by any subcontractor of the Licensee, subject always that such subcontractors shall use the Software only for the benefit of the Licensee.
2.3 Except as expressly permitted in this Licence Agreement, Licensee shall not, and shall not permit others to:
- 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;
- reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form;
- distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licensee’s right to use the Software;
- remove or modify any copyright, trademark, or other proprietary notices of Neuxpower affixed to the media containing the Software or contained within the Software; or
- use the Software in any manner not expressly authorised by this Licence Agreement.
2.4 Licensee agrees, subject to reasonable prior notice, to give Neuxpower such access and assistance to Licensee’s systems as may be necessary to confirm the Licensee’s compliance with the restrictions set out hereunder.
3. Proprietary rights
Neuxpower 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 Licensee. All rights in and to the Software not expressly granted to Licensee are reserved by Neuxpower.
4. License fee
In consideration for the licence granted to Licensee hereunder, Licensee shall pay to Neuxpower the Licence Fee. Such Licence Fee shall be due and payable on the date that the Licensee executes this Licence Agreement. Such Licence Fee is exclusive of VAT or other sales tax. If any applicable law requires Licensee to withhold amounts from any payments to Neuxpower hereunder,
- Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Neuxpower with tax receipts evidencing the payments of such amounts, and
- the sum payable by Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Neuxpower receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Neuxpower would have received and retained in the absence of such required deduction or withholding.
5. Term & 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 Licensee herein shall terminate; (b) Licensee shall cease all use of the Software; (c) Licensee shall return to Neuxpower all copies of the Software and Documentation in Licensee’s possession or under its control; and (d) Licensee shall certify in writing to Neuxpower 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 & warranties
6.1 Neuxpower warrants that the Software will function materially in accordance with the Documentation for a period of ninety (90) days from the Effective Date. Neuxpower shall have no obligation to provide ongoing support or maintenance services to Licensee unless the parties enter into a separate maintenance agreement.
6.2 The above warranty is conditional upon the Licensee 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 Licensee hereby represents that it shall
- comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and
- use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.
7. Limitations of liability
7.1 LICENSEE’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 LICENSEE TO NEUXPOWER UNDER THIS LICENCE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.2 IN NO EVENT SHALL NEUXPOWER 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 LICENSEE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CIRCUMSTANCES SHALL NEUXPOWER BE LIABLE FOR ANY FAILURE OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR AT ALL, RESULTING FROM A FAILURE BY THE LICENSEE TO COMPLY WITH THE MINIMUM REQUIREMENTS. ADDITIONALLY, LICENSEE ACKNOWLEDGES THAT WHILST THE SOFTWARE MAY BE USED IN COMBINATION WITH THIRD PARTY SOFTWARE, NEUXPOWER BEARS NO LIABILITY, HOWSOEVER ARISING, FOR ANY LOSS, DAMAGE OR COST THAT ARISES FROM A FAILURE OF THE SOFTWARE TO INTEGRATE WITH LICENSEE OR THIRD PARTY SOFTWARE.
8. General
8.1 Licensee shall not assign this Licence Agreement, in whole or in part, without the written consent of Neuxpower.
8.2 Licensee consents to the use by Neuxpower of Licensee’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Licensee and Neuxpower.
8.3 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.
8.4 Licensee agrees that because of the unique nature of the Software and Neuxpower’s proprietary rights therein, a demonstrated breach of this Licence Agreement by Licensee would irreparably harm Neuxpower and monetary damages would be inadequate compensation. Therefore, Licensee agrees that Neuxpower 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.
8.5 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.
8.6 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.
8.7 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.
8.8 This Licence Agreement, together with Neuxpower’s then current price list, where applicable, and all agreements in writing between the parties in respect of the Permitted Number and Licence Fees (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 Licensee shall supersede this Licence Agreement.
8.9 If Customer do not agree to the terms of this License Agreement, Customer may obtain a refund of the amount paid for the Software if Customer:
- do not use the Software and the accompanying items (including all electronic materials, documents etc) and
- notify Neuxpower in writing of the non acceptance of this License Agreement, with proof of payment, at the address set out below within 30 days of the purchase date.
Neuxpower Solutions Ltd
Studio 400 Highgate Studios
53-79 Highgate Road
London NW5 1TL
United Kingdom
