The terms and conditions of this End User Software Licence Agreement constitute the only basis on which AppSense agrees to supply the Software. All reasonable efforts have been undertaken to bring to your attention the terms and conditions of this Agreement and Licence herein.

1 Agreement

1.1 This End User Software Licence Agreement ("Agreement") is a binding agreement between you, the end-user ("End User"), and AppSense Limited of 3300 Daresbury Business Park, Daresbury Warrington WA4 4HS, England ("AppSense"). PLEASE READ THIS LICENCE AGREEMENT CAREFULLY BEFORE INSTALLING, USING OR DOWNLOADING THIS SOFTWARE PROGRAM. OPENING THE PACKAGING BY BREAKING THE SEAL, INSTALLATION AND/OR USE OF THIS SOFTWARE PROGRAM INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THEM, PROMPTLY RETURN THE MEDIA, THE PACKAGE AND THE ACCOMPANYING ITEMS TO THE PLACE FROM WHICH THEY WERE OBTAINED FOR A REFUND.

1.2 The term "Software" in this Agreement shall mean the machine-readable version of any AppSense computer program

1.3 AppSense Software programs are protected by copyright laws, international copyright treaties and intellectual property laws and treaties.

2 Grant of Licence

2.1 You may use the Software in accordance with the terms and conditions of the following licence ("Licence"):

2.2 You are purchasing the media or download file on which the Software is recorded or embedded only, and nothing contained in this Licence shall be construed as an assignment or transfer of any copyright, design right or other intellectual property rights in the Software, all of which rights are reserved and owned by AppSense.

2.3 Subject to you complying with the obligations hereunder AppSense hereby grants you a non-exclusive, non-sublicenseable and non-transferable Licence to use the Software in the form in which it is supplied at the time of delivery in accordance with and subject to payment of the appropriate Licence fees for the number of Servers (defined as a computer running a server operating system either physically or virtually), Computer Processing Units (CPUs) or desktops/laptops (defined as a computer running a desktop operating system both physically and in any virtual sessions) permitted as set out in you order documentation. A CPU being a processor made up from a single chip that houses a collection of one or more cores. You shall be responsible for and ensure that the Software is properly licensed for the number of Servers, CPUs or desktops as permitted under this Clause 2.3. The Software may only be used for internal business purposes.

2.4 You may make copies of the Software as reasonably required for backup or installation purposes. Such copies and the media on which they are stored shall be the property of AppSense and you shall ensure that all such copies bear AppSense proprietary notices. This clause shall apply to all such copies as it applies to the Software.

2.5 To the extent that the law grants you the right to configure the Software in order to obtain information necessary to render the Software interoperable with other computer programs used by you, AppSense undertakes to make such information readily available to you. AppSense shall have the right to impose reasonable conditions on release of such information including applying a reasonable fee for doing so. In order to ensure that you receive the appropriate information, you must first give AppSense sufficient details of your objectives and the other software concerned.

2.6 The Licence shall remain effective without limit in time unless and until you fail to abide by the terms of this Licence or this Licence is terminated by AppSense in which case the Licence will terminate automatically and immediately. Upon termination of the Licence, you shall deliver up to AppSense the media on which such Software is recorded or embedded (and all copies thereof (if any) in your possession) or, at AppSense’s option, shall erase or otherwise destroy the Software (and all copies thereof (if any) in your possession) and shall certify to AppSense that the same has been done.

3 Restrictions

3.1 You shall not alter, modify, adapt or translate the whole or any part of the Software in any way whatsoever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble, create derivative works from, reverse engineer to any human-perceivable form nor attempt to do any such things except to the extent and in the circumstances expressly required to be permitted by AppSense or by law.

3.2 Unauthorised use or modifications (as in accordance with this Agreement) of the Software by you shall be deemed to be breach of contract and AppSense shall be entitled to terminate the Agreement forthwith. Any use of the Software by you not in accordance with this Licence or after the aforementioned termination shall be regarded as unauthorised and unlicenced.

3.3 You are not permitted to rent, lease, sub-licence or lend any part of the Software or its associated documentation. You are not permitted to assign, novate or subcontract any rights or obligations of the Software or the Licence or this Agreement to any third party.

4 Limited Warranty

4.1 AppSense's warranty is limited to the extent that, for a period of 90 days from the date of delivery of the Software to you, the Software will substantially conform to applicable AppSense published user manual/documentation specification. AppSense does not warrant that the Software will be error free. This warranty shall not apply if you: (i) make or cause to be made any modifications to the Software without the written consent of AppSense; or (ii) the Software is used in combination with any software or materials not supplied by AppSense or its suppliers; or (iii) the Software is used in an application, or purpose or environment for which it was not intended; or (iv) the Software is used other than is permitted under this Agreement/Licence.

4.2 AppSense's products and Software are not designed, intended or authorised for use in any life saving or life sustaining systems, or for any other application in which the failure of the product could create a situation where personal injury or death may occur. Anyone using or selling products for use in such systems does so at their own risk, although Appsense does not restrict in any way its liability for Death or personal injury caused by its error or omissions.

5 Exclusive Remedy

5.1 Your exclusive remedy and AppSense’s entire liability under this warranty shall be for AppSense to use reasonable efforts to remedy any failure of the Software to conform to its specifications provided the failure is reported to AppSense or your supplier in writing within the warranty period. This warranty is void if failure of the Software has resulted from accident, abuse or misapplication. Replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.

6 IPR Indemnity

6.1 Notwithstanding Clause 6.2 and subject always to Clause 7.2 AppSense will indemnify and keep you indemnified against claims, that the use of the AppSense Software in the form in which it was supplied, infringes the intellectual property rights of a third party provided that you will not have the benefit of this indemnity if you have failed to promptly give AppSense written notice of a claim, or you have not provided all reasonable assistance to AppSense to enable AppSense to defend the claim, or AppSense has not been given the right to control the defence or settlement of any claim.

6.2 Where AppSense is in breach of Clause 6.1, your sole remedy will be at AppSense’s option that AppSense shall procure for you the right to continue the use of the Software, or to provide modifications to keep the Software in substantial conformity, or replace the Software so as to avoid infringement or terminate this Agreement immediately on written notice and refund the Licence fee paid less a reasonable charge for its use to the date of termination.

7 Liability

7.1 Subject to 7.2 In no event will AppSense or its associated companies be liable for: (a) incidental; (b) consequential; (c) special or indirect damages whatsoever; (d) damages for loss of business; (e) loss of profits; (f) business interruption; (g) loss of business information or data; (h) other pecuniary loss regardless of the form of action, whether in contract, tort (including negligence), (i) breach of warranty or otherwise, even if AppSense has been advised as to the possibility of such damages.

7.2 Subject and without prejudice to Clauses 6.1, and 7.1, and without prejudice to your obligation to pay the Licence fee hereunder, the parties' maximum liability (but excluding liability for death or personal injury, or fraudulent misrepresentation) under this Agreement is limited in respect of each event or series of connected events in any twelve month period as follows:

• £1,000,000 in respect of physical damage to or loss of tangible property;
• £100,000 in respect of all other events.

7.3 The parties' sole obligations and liabilities are as stated in this Agreement and all other representations (innocent or negligent), conditions, warranties and terms express or implied whether by statute, law or otherwise including those made prior to the date of licensing the Software are hereby excluded to the full extent permitted by law.

8 General

8.1 Some jurisdictions do not allow the exclusion or limitation of implied warranties or liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other rights that vary from jurisdiction to jurisdiction.

8.2 Without prejudice to any of its other rights or the Contracts (Rights of Third Parties) Act 1999, AppSense, its associated companies or any of its appointed suppliers or resellers of AppSense Software shall be permitted and entitled to enforce this Agreement or the Licence herein against you.

8.3 This Licence shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby agree to submit to the non-exclusive jurisdiction of the English courts. The United Nations conventions on contracts for the international sales of goods shall not apply to this Licence or Agreement.

8.4 AppSense Software is a modular software program and any additional functionality/modules are chargeable and excluded from upgrade/software subscription schemes. AppSense use personal information in accordance with its privacy policy available on its website. www.appsense.com