XJTAG LICENCE TERMS
1.1. In this Licence the following words and phrases shall, unless the context otherwise requires, have the following meanings:
“Academic Use Conditions” means the licence granted by XJTAG under these terms and conditions:
(a) is subject to the condition that the licensed rights will be used for academic research purposes only and shall not be used directly or indirectly for commercial purposes or otherwise to create products competitive with the Products; and
(b) is time limited to a period of one year from grant.
“Customer” means a purchaser of any of the Products from XJTAG or its authorised distributors.
“Fee” means the licence fee and/or purchase price of the Products together with any agreed support and maintenance payable by the Customer to XJTAG (or its authorised distributors as the context requires).
“Intellectual Property Rights” means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
“Maintenance Release” means any release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the software but which does not constitute a New Version.
“Modification” means any modification of the Software made by XJTAG including any Maintenance Release and or any New Versions.
“New Version” means any new version of the Software which from time to time is publicly marketed and offered for sale by XJTAG or its authorised distributors of the same 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.
“Object Code” means computer programming code assembled or compiled in magnetic or electronic binary form, which is readable and useable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering.
“Products” means any of the following products:
* XJTAG Development System,
* XJRunner; and
* XJLink with API.
* XJTAG DFT Assistant.
“Reverse Engineer” means attempt to discover the source code or underlying algorithms of the Software including the Object Code of the Software.
“Runtime Purpose” means execution of the Object Code of the Software solely for exercising the functionality of the Product of which the Software forms part or for which it has been supplied. It does not include Use of the Software to develop products or software that compete with the Products and or develop a product that runs using XJEASE.
“Re-hosting Consent” means a written consent provided by XJTAG to the Customer to transfer the Software from a specified server to another server if the Customer is licensed under XJTAG’s network licence model.
“Software” means the computer programs provided by XJTAG with and as part of the Products (whether on CD ROM or any other media or downloaded from any XJTAG authorised environment or embedded in the Products) and in any Modification which is supplied by XJTAG (or its authorised distributors of the same) and acquired by the Customer subject to the terms set out in this Licence and to any Special Condition;
“Special Condition” means any special condition of XJTAG applicable to this licence notified to and agreed with the Customer prior to its creation including the terms of the relevant licensing model and related fees selected and agreed with XJTAG (or its authorised distributors) when the Customer acquires the Product and any related support and maintenance services from XJTAG or its authorised distributors.
“Third Party Software” means any part of the Software the Intellectual Property Rights in which are licensed to XJTAG for inclusion in the Products.
“Third Party Conditions” means the conditions imposed by the Licensor of the Third Party Software on its Use as set out in Schedule 1 of this Licence.
“Use” means to access install download or otherwise benefit from using the functionality of the Software.
“XJTAG” means XJTAG LIMITED incorporated and registered in England with company number 4682618 whose registered office is at CamTech House, 137 Cambridge Road, Milton, Cambridge CB24 6AZ.
“XJEASE” XJTAG’s proprietary programming language of that name.
1.2. The headings in this Licence do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Licence.
1.3. Unless the context otherwise so requires:
1.3.1. references to XJTAG and the Customer include their permitted successors and assigns;
1.3.2. references to statutory provisions include those statutory provisions as amended or re-enacted; and
1.3.3. references to any gender include all genders;
1.3.4. references to the singular shall include the plural and vice versa as the context requires.
1.4. In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in any schedule or appendix, the provision in the body of this Licence shall take precedence.
1.5 any phrase or word introduced by the terms including, include, in particular, for example or any other similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Grant of Licence
2.1. XJTAG is the manufacturer of the Products and is the legal and beneficial owner and/or the licensor of Intellectual Property Rights in the Software.
2.2. In consideration of the Fee paid by the Customer, XJTAG hereby grants to the Customer a non-exclusive, licence to Use the Software for Runtime Purposes only and only in conjunction with the Products and for the type of licence specified in the Special Conditions and on the terms set out or referred to in this licence.
2.3. The licence in clause 2.1 shall subsist for the following periods:
2.3.1. If the Product has been supplied on free evaluation period it shall expire at the end of that period;
2.3.2. If the licence is required because the Customer has purchased the Products it shall last for the full period of the copyright in the Software unless and to the extent that a Special Condition applies.
2.4. If the Licence Fee paid by the Licensee is XJTAG’s published fee rate from time to time:
2.4.1. applicable to academic non-commercial use then the Licence granted is subject to the Academic Use Conditions.
2.4.2. applicable to XJTAG’s multi-user or network licence, the Software may only be used for the number of concurrent users agreed between XJTAG and the Customer and from the server specified and agreed in writing between XJTAG and the Customer in the Special Conditions or under a Re-hosting Consent
2.5. .XJTAG will not unreasonably refuse to give a Re-hosting Consent if the Customer pays XJTAG’s then current standard fee for such consent and complies with such other conditions as XJTAG may reasonably require.
2.6. The Customer will only Use the Third Party Software in accordance with the Third Party Conditions in the case of any conflict or ambiguity between this sub-clause and any other clause or sub-clause of this licence, this sub-clause shall prevail.
3. No Reverse Engineering
3.1. The Customer shall have 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 or create derivative works based on the Software except:
3.1.1. as expressly permitted by English Law or in writing by XJTAG; or
3.1.2. except to the extent that any adaptation of the Software (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 hardware or systems used by the Customer;
3.1.3 modification of any non-encrypted XJEASE supplied with the Products
3.2. The Products (other than XJLink ) are designed for use in conjunction with XJTAG control hardware interfaces including XJLink and it is a condition of their use that they are used in conjunction with the same except:
3.2.1. as expressly permitted by English Law or in writing by XJTAG; or
3.2.2. except to the extent that any adaptation of the Software (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 hardware or systems used by the Customer.
The Customer shall be entitled to assign the benefit and burden of this Licence in whole with the prior written consent of XJTAG not to be unreasonably withheld. Without limiting the foregoing it shall be reasonable for XJTAG to refuse consent to an Assignee if the proposed Assignee is not of reasonable financial standing or if in XJTAG’s reasonable opinion it may use its access to the Products to assist it in competing with XJTAG or if it is unable to obtain the consent of any of its Licensors for any such Licensors’ software forming part of the Software.
5. Licence Audit Right
The Customer shall permit XJTAG 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 any records kept pursuant to this Licence, for the purposes of ensuring that the Customer is complying with the terms of this Licence provided that XJTAG provides reasonable advance notice to the Customer of such inspections which shall take place at reasonable times.
6.1. The Customer shall pay to XJTAG or its authorised Distributor as the context requires the Fees in full within 30 days of XJTAG’s invoice or its authorised Distributor’s payment period as the context requires. All sums payable are exclusive of any applicable VAT for which the Customer shall be responsible.
6.2. If the Customer fails to pay any amount payable by it to XJTAG for the Products or the Software XJTAG shall be entitled but not obliged to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 5% per annum above the base rate for the time being of Barclays Bank plc (in the alternative XJTAG reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998).
6.3. Interest shall accrue on a daily basis and be compounded quarterly.
XJTAG will inform the Customer or its authorised Distributors (as the context requires) of any Modifications and will offer to sell such Modifications to the Customer or its authorised Distributors (as the context requires) upon the terms on which they are generally made available by XJTAG.
8. XJTAG’s Warranties
8.1. The Customer acknowledges that it has been given the opportunity to evaluate the Software and the Products to assess whether it or they are suitable and fit for its purposes. By entering into this licence the Customer acknowledges that it is solely responsible for assessing the Software and the Products for suitability and fitness for purpose and accepts that no warranty or representation of any kind is made by XJTAG as to fitness or suitability of purposes and all such warranties and representations express and implied are hereby excluded to the fullest extent permitted by law.
8.2. XJTAG 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 Products and the Software to achieve its intended results.
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, WITHOUT LIMITATION, THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE DURABILITY OR THE USE OF REASONABLE SKILL AND CARE.
8.5. Except as expressly stated in clause 8.9 XJTAG shall have no 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, which fall within the following categories:
8.5.1. special damage even though XJTAG was aware of the circumstances in which such special damage could arise;
8.5.2. loss of profits; anticipated savings; business opportunity or goodwill; and
8.5.3. loss of data.
8.6. Subject to 8.9 the total liability of XJTAG, whether in contract, tort or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee received by XJTAG for the relevant Product giving rise to the claim from the Customer.
8.7. THE CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS WERE MADE BY XJTAG PRIOR TO ENTERING INTO THIS LICENCE. THE CUSTOMER AGREES THAT, IN ENTERING INTO THIS LICENCE, IT DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OTHER THAN THOSE EXPRESSLY SET OUT IN THIS LICENCE.
8.8. THE CUSTOMER SHALL HAVE NO REMEDY IN RESPECT OF ANY REPRESENTATION (WHETHER WRITTEN OR ORAL) MADE TO IT UPON WHICH IT RELIED IN ENTERING INTO THIS LICENCE (UNLESS IT WAS A PROVEN FRAUDULENT MISREPRESENTATION) AND XJTAG SHALL HAVE NO LIABILITY OTHERWISE THAN PURSUANT TO THE EXPRESS TERMS OF THIS LICENCE.
8.9. THE EXCLUSIONS IN CLAUSE 8 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW BUT XJTAG DOES NOT EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF XJTAG, ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS, FOR FRAUD, FOR BREACH OF THE OBLIGATIONS IMPLIED BY S.12 SALE OF GOODS ACT 1979 OR S.2 SUPPLY OF GOODS AND SERVICES ACT 1982 OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
9. Intellectual Property Rights
9.1. The Customer acknowledges that all Intellectual Property Rights in the Products the Software and any Modification belong and shall belong to XJTAG or its Licensors and the Customer shall have no rights in the Intellectual Property Rights in or to the Products and/or the Software other than the right to use it in accordance with the terms of this Licence.
9.2. In the event of any claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Software or the Products (or any part thereof) in accordance with the terms of this Licence infringes the Intellectual Property Rights of a third party (an “Infringement Claim”)
9.2.1. the Customer shall notify XJTAG in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
9.2.2. the Customer shall not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without the prior written consent of XJTAG which consent shall not be unreasonably withheld or delayed; and
9.2.3. XJTAG shall have, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer shall give XJTAG all reasonable assistance in connection with those negotiations and such litigation at XJTAG’s request and expense.
9.3. If any Infringement Claim is made, or in XJTAG’s reasonable opinion is likely to be made, against the Customer, XJTAG may at its sole option and expense:
9.3.1. procure for the Customer the right to continue using, developing, modifying or maintaining the Software or the Product as the context requires (or any part thereof) in accordance with the terms of this Licence; or
9.3.2. modify the Software or the Product as the context requires so that it ceases to be infringing; or
9.3.3. replace the Software or the Product as the context requires with non-infringing software or Product; or
9.3.4. terminate this Licence immediately by notice in writing to the Customer and refund any of the Fee for the Product paid by the Customer as at the date of termination on return of the relevant Product
9.4 The Licensee acknowledges and agrees that any activation code, license key or registration information provided by XJTAG or by its Licensor’s to the Licensee for use in relation to the Software constitutes confidential information of XJTAG or its Licensor (the “Confidential Information”) and title thereto belongs to XJTAG or its Licensor (as the context requires). The Confidential Information will remain the exclusive property of XJTAG or its Licensor and the Licensee will not:
9.4.1 use the Confidential Information other than as contemplated by this Agreement, or
9.4.2 disclose or otherwise communicate, directly or indirectly, the Confidential Information to any person, firm, corporation or entity whatsoever.
10.1. XJTAG may terminate this Licence at any time on written notice to the Customer if the Customer is in material or persistent breach of any of the terms of this Licence and either that breach is incapable of remedy or the Customer fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach.
10.2. Termination by either party in accordance with the rights contained in this clause 9 shall be without prejudice to any other rights or remedies of either party accrued prior to termination.
10.3. Upon termination for any reason:
10.3.1. All rights granted to the Customer under this Licence shall cease;
10.3.2. the Customer shall cease all activities authorised by this Licence;
10.3.3. the Customer shall immediately return the Products to XJTAG and destroy or return (at XJTAG’s option) to XJTAG all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to XJTAG that it has done so.
11. Force Majeure
No party shall be liable to the other for any delay or non-performance of its obligations under this Licence arising from any cause or causes beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 11 shall excuse the Customer from any payment obligations under this Licence or under any collateral contract.
12. WMD Rules and Export Control
12.1. The Materials must not be used, wholly or in part, in connection with the development, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons.
12.2. This licence is expressly made subject to any regulations, orders, or other restrictions on the export from the UK of the materials or information about such materials which may be imposed from time to time by the UK government.
13. Use of the Products
No warranty is given that the Products are suitable for any particular purpose and without prejudice to the generality of the foregoing they must not be used on safety critical systems or in isolation as a testing regime save at the Customer’s sole risk and choice and on the basis that XJTAG is fully and effectively indemnified from and against all loss and damage arising from claims against it if they are so used on safety critical systems or in isolation as a testing regime as aforesaid.
No forbearance or delay by XJTAG in enforcing its rights will prejudice or restrict the rights of XJTAG, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
If any provision of this Licence is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.
Any amendment, waiver or variation of this Licence shall not be binding on the parties unless set out in writing, expressed to amend this Licence and signed by or on behalf of each of the parties.
17. Third Party Rights
No term of this Licence is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Licence other than in favour of the licensor of any Third Party Software under the Contracts (Rights of Third Parties) Act 1999 but only in relation to the Third Party Software Conditions and sub-clauses 9.1 and 9.4 of this licence to the extent that they relate to any software of the licensor of any Third Party Software included in the Software. For the avoidance of doubt XJTAG and the End User may agree changes to the terms of this licence without the consent of the licensor of any Third Party Software..
Notices shall be in writing, and shall be sent to the other party marked for the attention of the person at the last known address for such party (in the case of the Customer being its last invoicing address). Notices may be sent by first-class mail or facsimile transmission provided that facsimile transmissions are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed facsimile transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above.
19. Entire Agreement
This Licence, the Special Conditions (if any) 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.
20. Governing Law and Jurisdiction
This Licence shall be governed by and construed in accordance with English law and each party hereby submits to the non-exclusive jurisdiction of the English courts.
Third Party Software Conditions
Name of Third Party Licensor
PDFTron Systems Inc
Name of Third Party Software
Details of Third Party Software Conditions relating to the Use of PDFNet SDK
In this section
* “Software” refers to PDFNet SDK software
* End User refers to the Customer
* “Licensee” refers to XJTAG
(a) the End User:
(i) will use the PDFNet SDK software only as an integral component of the Products and will not extract the PDFNet SDK software to use its functionality as a stand alone product;
(ii) will not Use the PDFNet SDK software for development, compilation, debugging and similar design-time purposes;
(iii) will not reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithms of the PDFNet SDK software or attempt to do any of the foregoing in relation to the Object Code of the PDFNet SDK software; and
(iv) will not modify, adapt, translate or create any derivative works of the PDFNet SDK software or merge the PDFNet SDK software into any other software.
(b) the End User will not Use, copy, modify, or transfer the PDFNet SDK software, or any copy, adaptation, transcription, or merged portion thereof, except as expressly permitted by PDFTron Systems Inc. The End User’s rights will be non-exclusive and except as expressly permitted by the Licensee, non-assignable, provided always, however, that the provisions set forth in these Third Party Software Conditions applicable to the End User shall also apply to any permitted assignee
(c) PDFTron Systems Inc will have the exclusive ownership of all right, title, and interest in and to the PDFNet SDK software, including ownership of all Intellectual Property Rights and Confidential Information (as defined in clause 9.4 above) pertaining thereto, subject only to the rights and privileges expressly granted to the End User under the agreement of which this schedule forms part;
(d) the End User’s obligations under the said agreement will remain in effect for as long as it continues to possess or Use the PDFNet SDK software, and such obligations will be for the benefit of PDFTron Systems Inc and will be enforceable by PDFTron Systems Inc as a third party beneficiary against the End User.