Terms of Service

Ascertia end user desktop software license agreement

ACCEPTANCE

Ascertia Limited (“Ascertia”) is willing to license this software (the Software) and documentation (together the Product) in this installation package to you as an individual or as an authorised representative of the company or legal entity that will be using the Software only on condition that you accept all of the terms of this license agreement. You or the company or legal entity (referred to as the Licensee) can accept the terms of this License Agreement by clicking on the “I accept the agreement” button below, and proceed with the installation. To reject the terms of this License Agreement, click on the “I do not accept the agreement” button below and exit the installation process and make no further use of the software.

BY INSTALLING AND USING THIS ASCERTIA SOFTWARE, YOU AGREE FOR YOU OR YOUR ENTERPRISE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE ASCERTIA SOFTWARE.

Licensee and Ascertia may hereinafter be referred to as individually, a “Party”, or, together, the “Parties.”

LICENSE

Evaluation Copy. If you acquired the license for the Software on an evaluation basis, you may use the Software without charge for thirty (30) days from the day that you install the Software. You must pay the license fee and register your copy to continue to use the Software after the thirty (30) day evaluation period. To pay the license fee and register your copy, you should contact an authorised sales agent, use the e-shop on https://www.ascertia.com or email sales@ascertia.com. Registered Copy. Once the Licensee has paid the appropriate License Fee Ascertia grants to the Licensee a non-exclusive, non-transferable perpetual (unless earlier terminated by the Parties) License to Use (as hereinafter defined) the Software Product in conjunction with number of systems for which a license has been purchased and subject to the terms and conditions contained herein. A Right to Use License terminates at a mutually agreed date in the future.

The License entitles the Licensee to:

Subject to ii. below, use the Software Product on any computer equipment owned or leased by it;
Use the Product strictly in accordance with Clause 3 of this License.
Use the Product as may be defined within a separate sales or partner agreement.

The License shall not be deemed to extend to any material other than the Software Product.

USE OF THE PRODUCT

For the purpose of this License “Use” shall mean and include:

Utilising the Software for processing the Licensee’s own data for the Licensee’s own business purposes only. The Licensee shall not permit any third party save a bona fide Licensee or an agent of Licensee for the Licensee’s products to use the Product;
Copying the whole of the Product which is in machine readable form into a machine readable copy for use by the Licensee only on the system for back-up provided that no more than one such copy shall be in existence at any one time without the consent of Ascertia;
Storing the whole or any part of the software on the system or any other storage unit or disk and
Utilising (but not copying without prior authorization from Ascertia) the documentation in conjunction with the Software

The License shall not be deemed to extend to any material other than the Software Product.

SOFTWARE SUPPORT, ENHANCEMENT AND OTHER SERVICES

Ascertia shall issue to the Licensee such minor upgrade versions of the Software as may be developed by Ascertia whilst a Support and Maintenance Agreement is in force. Ascertia shall only maintain the two most recent versions of the Software, i.e. the current version and the previous version. Ascertia shall not be required to maintain any further versions of the Software that are older than this unless a separate legacy support agreement is enacted.
Warranty Support and Support and Maintenance Services are further defined in sections 7.0 and 7.1.
The Licensee is recommended to use the evaluation period to carry out any acceptance tests in respect of the Software.
The Licensee shall give Ascertia reasonable notice of all testing to be performed by the Licensee and shall permit Ascertia’s representatives to attend such testing if Ascertia so wishes.
In the event of the parties failing to agree matters in respect of any Enhancement or New Release of the Software performing in accordance with the specifications referred to, for the purpose of this additional term, it shall be open for either party to refer such dispute to an independent computer consultant, to be nominated in default of agreement between Ascertia and the Licensee by the President for the time being of the British Computer Society. Such independent computer consultant shall act as an expert and not as an arbitrator and his decision shall be final and binding on Ascertia and the Licensee in the absence of manifest error.

LICENSEE’S UNDERTAKINGS

The Licensee undertakes:

not itself or through any Affiliate, agent or third party to modify, vary, enhance, copy (other than for normal system operation and as specified in clause 3 above) reproduce, translate, adapt, sell, lease, License or sub-License the Product
To supervise and control use of the Product in accordance with the terms of this License
To use all reasonable efforts to ensure that any prospective Licensees of the Product are properly notified of the terms of this License prior to using the same
To reproduce and include the copyright notice of Ascertia on all and any copies, whether in whole or in part or in any form including partial copies or modifications made to the Product
Not to provide or otherwise make available the Product in whole or in part in any form to any person other than Ascertia’s employees or as specified in clause 3.0(a) above without Ascertia’s prior written consent;
Upon termination of this License for whatever reason to return or destroy (as Ascertia may reasonably instruct) the Product and all copies whether in whole or part, together with all documentation relating thereto, and to furnish Ascertia with a certificate to confirm that the same has been done and
Not to use the Product on a System at any other address than the Designated Address without written notification to Ascertia.

WARRANTY SUPPORT

Ascertia and the Licensee acknowledge that software in general is not error-free and agree that existence of such errors shall not constitute a breach of this License. A warranty period of 90 days is provided with the software. If during this period the Licensee discovers a material error in the software it shall notify Ascertia promptly taking all reasonable measures to supply information necessary for Ascertia to reproduce the error, and Ascertia shall use reasonable endeavours to remedy the error or supply a work-around solution.

SUPPORT AND MAINTENANCE SERVICE

Support and maintenance services and access to upgraded versions of the licensed software are available. If such services have been selected and paid for then priority support services will be provided. If during the support and maintenance period the Licensee discovers a material error in the software it shall notify Ascertia promptly taking all reasonable measures to supply information necessary for Ascertia to reproduce the error, and Ascertia shall use reasonable endeavours to remedy the error, supply a work-around solution or issue a software patch or a new version at its sole discretion.

If the material error prevents any use of the Software (a “Level 1 problem”), it shall notify Ascertia promptly taking all reasonable measures to supply information necessary for Ascertia to reproduce the error, and Ascertia shall use reasonable endeavours to remedy the error or supply a work-around solution as soon as operationally possible and within two working days of the supply of adequate detailed error information.
If the material error does not prevent basic functioning of the Software but is nevertheless in the parties’ view a serious error (a “Level 2 problem”), it shall notify Ascertia promptly taking all reasonable measures to supply information necessary for Ascertia to reproduce the error, and Ascertia shall use reasonable endeavours to remedy the error or supply a work-around solution within five working days of the supply of adequate detailed error information.
If the material error in the software does not prevent basic functioning of the Software and is by agreement of the parties minor in nature (a “Level 3 problem”), it shall notify Ascertia promptly taking all reasonable measures to supply information necessary for Ascertia to reproduce the error, and Ascertia shall use reasonable endeavours to remedy the error or supply a work-around solution within thirty working days of the supply of adequate detailed error information or at its sole discretion fix the error in a future release.
The provisions 7.0 and 7.1 a, b and c above shall apply only where the Licensee is in good financial standing with Ascertia. Ascertia reserves the right to refuse or withdraw service where an accurate invoice due to Ascertia remains unpaid. The Licensee is responsible for ensuring that the facilities and functionality provided in the Software are suitable for their requirements. Ascertia will not be liable for any failure of the Software to provide any facility or functionality not specified in the manual or in specifications of enhancements that may have been supplied in whole or in part to the Licensee. For avoidance of doubt Ascertia does not warrant the accuracy of the data supplied by third parties that is contained within its databases.
In the event of the parties failing to agree matters in respect of any Enhancement or New Release of the Software performing in accordance with the specifications referred to, for the purpose of this additional term, it shall be open for either party to refer such dispute to an independent computer consultant, to be nominated in default of agreement between Ascertia and the Licensee by the President for the time being of the British Computer Society. Such independent computer consultant shall act as an expert and not as an arbitrator and his decision shall be final and binding on Ascertia and the Licensee in the absence of manifest error.

LIABILITIES

Neither party shall be liable for loss or damage to tangible property arising from negligence or wilful act of itself, its employees, agents or authorized representatives. Subject to the foregoing, neither party shall be liable for any damage whatsoever or howsoever caused arising directly or indirectly in connection with this License, the Product or its use (whether as herein defined or otherwise) except to the extent that such liability may not lawfully be excluded.
Notwithstanding the generality of 7.2a. above, the Parties expressly exclude liability for indirect, special, incidental or consequential loss or damage which may arise in respect of the Product, its use (whether as herein defined or otherwise), the System or in respect of other equipment or property or for loss of profit business revenue goodwill or anticipated savings.
The parties do not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of Ascertia its employee’s agents or authorized representatives.
Except in respect of injury to or death of any person (for which no time limit applies) the liability of either Party in respect of all events shall not exceed the License Fee paid by the Licensee.

IPR

The Licensee acknowledges that any and all of the trademarks, trade names, copyrights, patents and other intellectual property rights embodied or used in the Product as licensed to Licensee (the “Intellectual Property Rights”) shall be and remain the sole property of Ascertia.
Notwithstanding the foregoing, in the event that (A) the Parties jointly develop any product or application which contains or has associated with it the Intellectual Property Rights, or (B) the Licensee develops any product or application which contains or has associated with it the Intellectual Property Rights (in either case, a “Derivative Work”), the Parties shall, prior to the creation of any such Intellectual Property Rights, agree in writing on ownership of such Intellectual Property Rights on a case-by-case basis. However, in the event that the Parties fail to address ownership prior to the creation of such Derivative Work, then upon the written request of either Party, the Parties shall use best efforts to agree upon and document their respective rights with respect to any such Derivative Work within thirty (30) calendar days of the request. In any event, the Parties agree that Licensee shall be entitled to, at the minimum, a perpetual license to resell, use or distribute the Derivative Work within certain identified territories for a period of time extending for five years after the termination of this License.
The Licensee shall indemnify Ascertia against all liabilities, costs and expenses which Ascertia may incur as a result of work done in accordance with any requirements of the Licensee that infringe any copyright, patent or other proprietary right

INFRINGEMENT

Ascertia undertakes that it shall use all reasonable endeavours at all times to ensure that the Product does not infringe any third party current patent, trade mark, industrial design, copyright or other proprietary right.

The Licensee undertakes that Ascertia shall be given prompt notice of any claim for the infringement of any current patent, trade mark, industrial design, copyright or other proprietary right which is made against the Licensee arising from Licensee’s use of the Product and Ascertia shall defend any such claims and make settlements thereof at its own discretion and the Licensee shall give such assistance, as Ascertia may reasonably require to settle or to oppose such claims.
In the event that such infringement occurs or may occur Ascertia will may at its sole option and Ascertia’s expense:
procure for the Licensee the right to continue using the Product or any infringing part thereof or:
replace the Product or any part thereof to the effect that the same becomes non-infringing or:
replace the Product or any part thereof with other products to the effect that the same becomes non-infringing or:
Repay to the Licensee the whole of the License Fee as may have been paid to Ascertia or part thereof relating to the infringing part of the Product as the Licensee requires.

In the event that remedies under clauses 7.4.b, i. – iii. above do not conform to the functionality of the Software as set out in the Product documentation and any enhancement specifications that apply, the Licensee may terminate the agreement forthwith and the remedy set forth in clause 7.4.b.iv. shall then apply.

TERMINATION

In addition to provisions as herein provided, Ascertia may by thirty days prior notice in writing to the Licensee terminate this License if the Licensee is in a material breach that is not de minimis of any term, condition or provision of this License as required by law.
Termination, howsoever or whenever occasioned shall be subject to any rights or remedies that the parties may have under this License or in law.

ASSIGNMENT

This License or the Product shall not be assigned or otherwise transferred either in whole or in part without the written consent of Ascertia, such consent not to be unreasonably withheld or delayed.

WAIVER

Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed or 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 License nor prejudice that party’s rights to take subsequent action.

SEVERABILITY

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

FORCE MAJEURE

Notwithstanding anything else in this License neither Party shall be liable for any delay or failure in performing its obligations hereunder if such delay is caused by an act of God, fire, war (whether declared or not) or governmental decree or regulation. The performance of obligations so delayed shall be suspended for the duration of the circumstances giving rise to the delay and such party shall be granted an extension of time equal to the period of delay for performance of their obligations. Any costs arising from such delay or failure shall be borne by the Party incurring the same. If the delay or failure continues for more than 60 days either Party may by giving written notice to the other terminate the agreement in which event the Licensee shall reimburse Ascertia for actual costs incurred in respect of any work undertaken by it prior to the commencement of the failure or delay.

JURISDICTION

This License Agreement shall be governed by the courts of and construed in accordance with the laws of England and Wales.

CONTACT POINT

Should you have any questions concerning this license, or if you desire to contact Ascertia for any reason, please contact Ascertia by electronic mail at: support@ascertia.com or sales@ascertia.com