ONPRO TECHNOLOGIES LIMITED, a company registered at Masdar City Free Zone, Abu Dhabi under Company Number MC-12586, with Head Office at 249 Wafra Square, Reem Island, Abu Dhabi, PO 5217, United Arab Emirates (Supplier) is the entire legal and beneficial owner and licensor of certain software products listed in at the start of this document and is willing to license the Customer to use these products.
1.1 The definitions and rules of interpretation in this clause apply in this licence.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world. New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version, which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Site: the premises from which the Customer carries out its business as notified to the Supplier in writing from time to time.
Software: the software known as ONPRO ONE and related applications.
The Supplier shall deliver remotely one copy of the Software to the Customer within 1 working day of payment of the licence fee or signing up for a free account.
3.1 In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier shall acknowledge, the Supplier grants to the Customer a non-exclusive licence for a term of 1 (one) year to use the Software.
3.2 In relation to scope of use:
(a) for the purposes of Clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
(b) the Customer may not use the Software other than as specified in Clause 3.1 and Clause 3.2(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(c) the Customer may make backup copies of their data for its lawful use.
(d) except as expressly stated in this Clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer where such integration is approved by the Supplier, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achievesuch
integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such
information before undertaking any such reduction.
3.3 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this agreement, without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
3.4 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
3.5 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
3.6 Notwithstanding Clause 6, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 3.6 shall be made until notice of the identity of the proposed assignee has been given to the other party.
3.7 The Customer shall:
(a) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(b) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
(c) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
3.8 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
The Supplier will provide the Customer with all further releases generally made available to its customers. The Supplier warrants that no release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all releases as soon as reasonably practicable after receipt.
5.1 The Customer shall pay to the Supplier the fee in accordance with the approved quotation provided within the agreed credit terms.
5.2 All sums payable under this licence are exclusive of any relevant local sales taxes, for which the Customer shall be responsible.
6. CONFIDENTIALITY AND PUBLICITY
6.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
6.2 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
7.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
8. SUPPLIER’S WARRANTIES
8.1 The Supplier warrants that the Software will conform in all material respects to the specification agreed between the Supplier and the Customer (the “Specification”) for a period of 90 days from the date of this licence (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following:
(a) repair the Software; or
(c) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.
8.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
8.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
8.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in this clause 9:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
provided that this Clause 9.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of Clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to
(vi) inclusive of this Clause 9.1(a)];
(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in Clause 8.5 and Clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which may not be excluded by law.
9.3 All dates supplied by the Supplier for the delivery of the Software] shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any further releases belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
10.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or inSOFTWARE LICENSING AGREEMENTDOC VERSION: OP2007 connection with any such Claim. For the avoidance of doubt, Clause 10.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
10.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under Clause 10.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
10.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in Clause 9.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.
10.5 Notwithstanding any other provision in this agreement, Clause 10.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
10.6 This Clause 10 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to Clause 10.1.
11. DURATION AND TERMINATION
11.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving 30 days written notice to the other party.
11.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
11.3 On termination for any reason:
(a) all rights granted to the Customer under this licence shall cease;
(b) the Customer shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14. ENTIRE AGREEMENT
14.1 This licence, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2 Each party acknowledges that, in entering into this licence, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence.
14.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
14.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
16.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement may be executed in any number of counterparts, each of which when executed [and delivered] shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.SOFTWARE LICENSING AGREEMENTDOC VERSION: OP2007
18. NO PARTNERSHIP OR AGENCY
18.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to its main email ID.
19.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the third Business Day after posting or at the time recorded by the delivery service.
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
20. GOVERNING LAW AND JURISDICTION
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Abu Dhabi Global Market (ADGM), Abu Dhabi, United Arab Emirates.
20.2 The parties irrevocably agree that the courts of Abu Dhabi Global Markets shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non- contractual disputes or claims).
This licence has been entered into on the date stated at the beginning of it.