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End User License Agreement

IMPORTANT NOTICE: BY INSTALLING THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND YOU AND YOUR EMPLOYEES AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT INSTALL, COPY OR USE THE SOFTWARE.

This END USER LICENSE AGREEMENT (this "Agreement") is made by and between you, as either an individual or a single entity ("Licensee" or "you") and Lightmap Limited, a company registered in England and Wales (No. 6879016), ("Licensor" or "we"). In consideration of the mutual covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which is acknowledged by each party hereto) the parties agree as follows:

1.         GRANT OF LICENSE

Subject to the limitations of Section 2, the Licensor hereby grants to you a limited, non-transferable and non-exclusive license to install and use a machine readable, object code version of this software program (the "Software"), for the period of time allowed by your License Key, and the accompanying documentation (the "Documentation") solely for your own business purposes (collectively, the "License"); provided, however, your right to install and use the Software and the Documentation is limited to those rights expressly set out in this Agreement.

2.         RESTRICTIONS ON USE

2.1       You undertake: (i) not to gift, share, offer for sale, sell or provide to any third party any image outputs created using the Software (‘output’). The output is for your internal use only. (ii) not to gift, share, offer for sale, sell or provide to any third party any services involving the provision of output only.

2.2       You shall not share, rent, sell, lease, sublicense, assign, loan, transfer, pledge or export the Software, the Documentation or your rights hereunder.

2.3       You shall not modify, adapt, merge, vary, translate or create derivative works based on the Software and Documentation.

2.4       You shall not (and shall not permit any third party to) alter or circumvent the license protection mechanisms in the Software or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.

2.5       You shall not make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs.

2.6       You shall not disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving interoperability of the Software with another software program, and provided that the information obtained by you during such activities:

a. is used only for the purpose of achieving interoperability of the Software with another software program; and

b. is not unnecessarily disclosed or communicated without the Licensor's prior written consent to any third party; and

c. is not used to create any software that is substantially similar to the Software.

2.7       You shall not allow or permit anyone (other than you and your authorised employees) to use or have access to the Software or Documentation.

2.8       You shall not take any action, or fail to take action, that could adversely affect the trademarks, patents, copyrights or other intellectual property rights of the Licensor or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). Furthermore, for purposes of this Section 2, the term "Software" shall include any derivatives of the Software.

2.9       You shall not use the Software by means of remote terminal access over a communications network.

2.10     You agree to supervise and control the use of the Software and where applicable ensure that the Software is used by your employees and representatives in accordance with the terms of this License.

2.11     If the Software is used without a License Key, the output will be watermarked and in this mode you may only use the Software for the purpose of evaluation and for no other purpose. In this mode you agree not to use the Software for commercial, professional or for-profit purposes.

2.12     Expired licenses. If the Software is used with a License Key that has expired (that is to say ceased to function after a particular date), the output will be watermarked and in this mode you may only use the Software for the purpose of evaluation and for no other purpose. In this mode you agree not to use the Software for commercial, professional or for-profit purposes.

2.13     Educational licenses. If the License Type is "EDU" you may only use the Software for the purposes of learning and/or teaching and for no other purpose. In this mode you agree not to use the Software for commercial, professional or for-profit purposes, and you agree that the number of concurrent users of the Software does not exceed the total number of licenses granted to you.

2.14     Beta licenses. If the License Type is "beta" you may only use the Software for the purpose of testing and for no other purpose, and you agree that the number of concurrent users of the Software does not exceed the total number of licenses granted to you.

2.15     NFR (Not For Resale) licenses. If the License Type is "nfr" you may only use the Software for the purposes of demonstration, learning, training and evaluation and for no other purpose. In this mode you agree not to use the Software for commercial, professional or for-profit purposes, and you agree that the number of concurrent users of the Software does not exceed the total number of licenses granted to you.

2.16     Commercial licenses. If the License Type is "commercial" you agree that the number of concurrent users of the Software does not exceed the total number of licenses purchased by you.

2.17     Pro licenses. If the License Type is "pro" you agree that the number of concurrent users of the Software does not exceed the total number of licenses purchased by you.

2.18     Automotive licenses. If the License Type is "automotive" you agree that the number of concurrent users of the Software does not exceed the total number of licenses purchased by you.

2.19     Indie licenses. The pricing applicable to Indie Licenses is only available to those individuals or organizations (the ‘Indie User’) where: (i) such Indie User and its affiliates and related individuals collectively have revenues not exceeding US$100,000 during the prior, or current, fiscal year. (ii) in the case of an Indie User that is sharing Software project files with a third party that will use the project files in connection with a Commercial activity, such third party and its Affiliates and related individuals collectively have revenues not exceeding US$100,000 during the prior, or current, fiscal year, directly or indirectly. If the licensee is taking advantage of the pricing applicable to Indie Licenses, the Licensee represents and warrants that they satisfy these criteria.

Only one (concurrent) Indie license purchase is permitted per individual/organization.

If the License Type is "indie" you can use the software for Commercial purposes, subject to the revenue limitations above, and you agree that the number of concurrent users of the Software does not exceed the total number of licenses purchased by you.

3.         BACKUP COPIES

3.1       You are permitted to make one copy of the Software in order to provide a back-up in the event of destruction by flood, fire, acts of war, acts of nature, or other incident. In no event may the Licensee use the backup-up copy of the Software or Documentation to circumvent the usage or other restrictions set forth in this Agreement.

3.2       You must include the copyright notice of the Licensor on all entire or partial copies of the Software.

3.3       You agree to keep all copies of the Software reasonably secure.

4.         CONSENT TO USE OF DATA

You agree that the Licensor may collect, process and store software usage data. Data is anonymous, unless the software is used with a License Key, whereby license key data is transmitted, which does not contain personally identifiable information, but can be cross referenced to identify a user for license compliance checks. As a result of collecting this data, the IP address from where data originates is recorded as part of the communication protocol.


5.         INSPECTION

You shall advise the Licensor, on demand, of all locations where the Software or Documentation is used or stored. You shall permit the Licensor, or its authorised representatives, at all reasonable times and on reasonable advance notice to have access to any premises at which the Software or the Documentation is being kept or used and to inspect the computer equipment and any records kept there pursuant to this License, for the purpose of ensuring that you are complying with the terms of this License. If any inspection discloses a breach of this Agreement, the Licensor reserves the right to immediately terminate this Agreement and/or recover damages, attorney's fees, and costs.


6.         OWNERSHIP

6.1       You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to the Licensor and the Third Party Licensors, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this License.

6.2       The Software contains technical protection measures to defend the intellectual property rights, including copyright, and to manage the use of the Software in accordance with this License. You agree not to circumvent or remove, or attempt in any way to circumvent or remove, the technical protection measures in the Software.

6.3       You shall not remove, or allow the removal of, any copyright or other proprietary rights notice included in and on the Software or Documentation or take any other action that could adversely affect the property rights of the Licensor or any Third Party Licensor.


7.         LIMITED WARRANTY

7.1       The Licensor warrants that:

a. for a period of ninety (90) days from the date of purchase ("Warranty Period") the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation;

b. it has tested the Software for viruses using commercially available virus checking software, consistent with current industry practice.

7.2       You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

7.3       You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this License.

7.4       Except as warranted, the Software and Documentation is being provided "as is." THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND THE LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER THE LICENSOR KNOWS OR HAS REASON TO KNOW OF LICENSEE'S PARTICULAR NEEDS.


8.         LIMITED REMEDY

The Licensor's entire liability and your exclusive remedy during the Warranty Period as provided in Section 7 ("Limited Warranty") will be, at the Licensor's option, to attempt to correct or work around errors, to replace the defective media on which the Software is provided, if any, or to refund the license fees and terminate this Agreement.


9.         LIMITED LIABILITY

9.1       Nothing in this License shall exclude or in any way limit the Licensor's liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent that it may not be excluded or limited as a matter of law.

9.2       The Licensor shall not be liable under, or in connection with, this License or any collateral contract for any of the following types of losses whether caused by tort (including negligence), breach of contract or otherwise:

a. loss of income;

b. loss of business profits or contracts;

c. business interruption;

d. cost of procurement of substitute goods or services;

e. loss of the use of money or anticipated savings;

f. loss of information;

g. loss of opportunity, goodwill or reputation;

h. loss of, damage to or corruption of data; or

i. any indirect or consequential loss or damage of any kind howsoever.

9.3       No action arising out of or related to this Agreement, regardless of form, may be brought by you more than one (1) year after your initial receipt of the Software; provided, however, to the extent such one (1) year limit may not be valid under applicable law, then such period shall be limited to the shortest period allowed by law.

9.4       The Licensor's maximum aggregate liability under or in connection with this License, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall not exceed the License fee paid by you.

9.5       The Licensor's liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the United Kingdom.


10.       TERMINATION

10.1     The Licensor may terminate this License immediately if you are in breach of this Agreement.


10.2     Upon termination:

a. all rights granted to you under this License shall cease; and

b. you must cease all activities authorised by this License; and

c. you must immediately pay to the Licensor any sums due to the Licensor under this License; and

d. you must immediately delete or remove the Software from all computer equipment on which it was installed, and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software and Documentation then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.


11.       TRANSFER OF RIGHTS AND OBLIGATIONS

11.1     This License is binding on you and us, and on our respective successors and assigns.

11.2     You may not transfer, assign, charge or otherwise dispose of this License, or any of your rights or obligations arising under it, without our prior written consent.

11.3     The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this License, or any of the Licensor's rights or obligations arising under it, at any time during the term of the License.


12.       CANCELLATION

You have no right to cancel your order and receive a refund once the Licensor has issued a License Key to you.


13.       WAIVER

13.1     If the Licensor fails, at any time during the term of this License, to insist upon strict performance of any of your obligations under this License, or if the Licensor fails to exercise any of the rights or remedies to which the Licensor is entitled under this License, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

13.2     A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.

13.3     No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.


14.       SEVERABILITY

If any of the terms of this License are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.


15.       CONFIDENTIALITY

You agree that the Software and Documentation are confidential and proprietary information of the Licensor. You agree that you will respect and preserve the confidentiality of all such information and any communications relating thereto (collectively, "Confidential Information"). You shall disclose Confidential Information only to your employees who have a "need to know" such Confidential Information, and shall advise any recipients of Confidential Information that it is to be used only as authorized in this Agreement. You shall not, without the prior written consent of the Licensor, disclose Confidential Information or otherwise make any Confidential Information available to any other employees of the Licensee or to any third parties. You shall take reasonable security measures to hold the Software, Documentation and Confidential Information in strict confidence and safe custody. You acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that the Licensor shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.


16.       ENTIRE AGREEMENT

16.1     This License and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

16.2     We each acknowledge that, in entering into this License, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to entering into this License except as expressly stated in this License.

16.3     Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this License (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in these terms and conditions.


17.       LAW AND JURISDICTION

This License, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.


Appendix A

 

DEFINITIONS

"License Key" means a human readable code that unlocks features of the Software and defines the use by which the Licensee shall use the Software. The License Key can be stored in a license file locally or on a remote computer.

"License Type" means the type of usage for the Licensee's licensed use of the Software (e.g. indie, pro, automotive, commercial, educational, not for resale, etc). The License Type may be located in (a) the Software (e.g. in a license information dialog box); or (b) the contract field of the License Key; or (c) obtained from the Licensor on request.

EULA    1 May 2019