Copyright (C) 1998 - 2020 Operis Business Engineering Limited
All Rights Reserved
This Agreement is a legal agreement between you (you) and Operis Business Engineering Limited, a company incorporated in England and Wales with company number 03373050 and registered office address at 1 Lumley Street, Mayfair, London, W1K 6TT, and whose correspondence address is at 110 Cannon Street, London, EC4N 6EU (Operis or we or us).
This Agreement is for:
We license use of the Software to you on the basis of this Agreement and for the duration of the Licence (as defined in clause 1.1). We do not sell the Software to you. We remain the owners and retain title to the Software and all rights relating to the Software at all times.
The Software will run on any of the following operating systems, providing Version 4.6.2 of Microsoft’s .NET framework has been installed:
The supported versions of Excel comprise:
BY CLICKING ON THE “ACCEPT” BUTTON BELOW YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES. THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CONDITION 4.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE PROCESS NOW BY CLICKING ON THE “CANCEL” BUTTON BELOW. IN THIS CASE THE INSTALLATION PROCESS WILL TERMINATE.
You should print a copy of this Agreement for future reference.
1.1 With effect from the date on which you register to use the Software and subject to you selecting a licence fee category and providing us with your payment details, Operis hereby grants to you a non-exclusive, non-transferable licence to use the Software on the terms of this Agreement (Licence).
1.2 By registering as a user, you will be granted the Licence without charge for a period of 15 days from the date of registration (the Trial Period). Unless cancellation is effected by you during the Trial Period, upon the expiry of the Trial Period you will be charged the applicable licence fee in line with the licence fee category selected by you upon registration, which will enable you to continue to use the Software beyond the Trial Period, for the Licence Term.
1.3 For the purpose of this clause 1, “Licence Term” shall mean the period corresponding to the applicable licence fee category that you selected at registration (being either a period of 1 month or 12 months) commencing upon completion of the Trial Period.
1.4 The Licence shall continue for the duration of the Licence Term. Unless cancellation is effected by you before the end of the Licence Term (or any Extended Licence Term), you will be granted an automatic extension of the Licence beyond the Licence Term (or any Extended Licence Term), for a period of time equivalent to the Licence Term (Extended Licence Term) and the applicable licence fee will be charged to you.
1.5 The Licence granted under this clause 1 does not extend to any new versions of the Software, being any new versions of the Software which from time to time may be publically marketed and offered for purchase by Operis in the course of its normal business, and which contain significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product (New Version).
1.6 You agree not to use the Software for any re-sale purposes.
1.7 You may:
1.7.1 download, install and use the Software for the purpose of processing your or your own clients’ data for your normal business purposes (which shall include using the Software to produce audit reports for the benefit of your clients); and
1.7.2 provided it is used on only one computer at any one time, transfer the Software from one computer to another.
1.8 Except as expressly stated in this clause 1 or as permitted by any local law, you undertake:
1.8.1 not to copy the Software except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
1.8.2 to supervise and control use of the Software and ensure that the Software is used by your personnel in accordance with the terms of this Agreement;
1.8.3 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
1.8.4 not 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 (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 inter-operability 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 inter-operability of the Software with another software program; and
(b) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(c) is not used to create any software which is substantially similar to the Software.
1.9 Operis 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 Agreement, provided it gives written notice to you.
1.10 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
1.11 You undertake to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software. You shall permit Operis 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 Agreement, for the purposes of ensuring that you are complying with the terms of this Agreement, provided that Operis provides reasonable advance notice of such inspections, which shall take place at reasonable times.
1.12 You acknowledge and agree that in the event of broadening the scope of use beyond the permitted uses set out in this clause 1, you will pay, without prejudice to any other rights or remedies Operis may have, within 30 days from a demand in writing by Operis, an amount equal to the fees which Operis 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.
2. Maintenance Releases
Operis may provide you with Maintenance Releases generally made available to its customers from time to time. Operis warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
3. Operis’ warranties
3.1 Operis warrants that the Software will conform in all material respects to the specification of the Software set out on the Operis’ website immediately prior to the date when the Software is downloaded by you from Operis’ website or otherwise provided to you by Operis (Specification) for a period of 30 days from the installation of the Software by you (Warranty Period). If, within the Warranty Period, you notify Operis 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 you, or anyone acting with your authority, having amended the Software or used it outside the terms of the 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 Operis, or it has not been loaded onto suitably configured equipment, Operis shall, at Operis’ option, do one of the following:
3.1.1 repair the Software;
3.1.2 replace the Software; or
3.1.3 terminate this Agreement immediately by notice in writing to you and refund any of the fee paid by you as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof,
provided you provide all the information that may be necessary to assist Operis in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Operis to re-create the defect or fault.
3.2 Operis does not warrant that the use of the Software will be uninterrupted or error-free.
3.3 You accept responsibility for the selection of the Software to achieve its intended results and acknowledge that the Software has not been developed to meet your individual requirements. Operis does not warrant that the Software will meet your particular requirements (whether or not those requirements have been made known to Operis) and Operis disclaims any and all liability in respect thereof.
3.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement 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.
4. Limits of liability and indemnity
4.1 Except as expressly stated in clause 4.2:
4.1.1 Operis shall not in any circumstances have any liability for any losses or damages which may be suffered by you (or any person claiming under or through you, including, but not limited to, your own clients), 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: (a) special, indirect or consequential damage even if Operis was aware of the circumstances in which such damage could arise; (b) loss of profits, sales, business, or revenue; (c) business interruption; (d) loss of anticipated savings; (e) loss of business opportunity, goodwill or reputation; (f) ex gratia payments of any kind to your own clients; (g) loss or corruption of data or information; (h) any loss or damage which is caused by any failure of the Software which is due to any integration or interoperability issues arising with any of your or third party systems;
4.1.2 the total liability of Operis in any Contract Year, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the aggregate licence fee or fees paid by you to Operis in such Contract Year. For the purpose of this clause, “Contract Year” shall mean a period of 12 consecutive months commencing on the date you register to use the Software and each anniversary thereof; and
4.1.3 you agree that, in entering into this Agreement, either you 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 Agreement or (if you did rely on any representations, whether written or oral, not expressly set out in this Agreement) that you shall have no remedy in respect of such representations and (in either case) Operis shall have no liability in any circumstances otherwise than in accordance with the express terms of this Agreement.
4.2 The exclusions in clause 3.4 and clause 4.1 shall apply to the fullest extent permissible at law, but Operis does not exclude liability for: (i) death or personal injury caused by the negligence of Operis, its officers, employees, contractors or agents; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which may not be excluded by law.
4.3 All references to “Operis” in this clause 4 shall, for the purposes of this clause and clause 14 only, be treated as including all employees, subcontractors and suppliers of Operis, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 14.
4.4 You assume sole responsibility for results obtained from the use of the Software by you and for conclusions drawn by you and/or your own clients from such use.
4.5 You shall on demand defend, indemnify and hold harmless Operis against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Software and/or conclusions drawn by you and/or your own clients from such use, save to the extent that any of the foregoing arise out of or in connection with any defect in title to the intellectual property rights in the Software and provided that you comply with clauses 5.2 to 5.4.
5. Intellectual property rights
5.1 You acknowledge that all intellectual property rights in the Software anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software other than the right to use the Software in accordance with the terms of this Agreement.
5.2 Operis undertakes at its own expense to defend you or, at its option, settle any claim or action brought against you alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of the Licence infringes the UK 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 you as a result of or in connection with any such Claim. For the avoidance of doubt, clause 5.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by you other than in accordance with the terms of the Licence, use of the Software in combination with any hardware or software not specified by Operis 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.
5.3 If any third party makes a Claim, or notifies an intention to make a Claim against you, Operis’ obligations under clause 5.2 are conditional on you:
5.3.1 as soon as reasonably practicable, giving written notice of the Claim to Operis, specifying the nature of the Claim in reasonable detail;
5.3.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Operis (such consent not to be unreasonably conditioned, withheld or delayed);
5.3.3 giving Operis 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 your power or control, so as to enable Operis and its professional advisers to examine them and to take copies (at Operis’ expense) for the purpose of assessing the Claim; and
5.3.4 subject to Operis providing security to you to your reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Operis may reasonably request to avoid, dispute, compromise or defend the Claim.
5.4 If any Claim is made, or in Operis’ reasonable opinion is likely to be made, against you, Operis may at its sole option and expense:
5.4.1 procure for you the right to continue to use the Software (or any part thereof) in accordance with the terms of the Licence;
5.4.2 modify the Software so that it ceases to be infringing;
5.4.3 replace the Software with non-infringing software; or
5.4.4 terminate this Agreement immediately by notice in writing to you and refund any of the fee paid by you as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if Operis modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 3.1 and you shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
5.5 This clause 5 constitutes your exclusive remedy and Operis’ only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 4.1
6. Duration and termination
6.1 We may terminate this Agreement immediately by written notice to you if you commit a material or persistent breach of this Agreement which you fail to remedy (if remediable) within 30 days after the service of written notice requiring you to do so.
6.2 Where cancellation is effected by you in accordance with clause 1, this Agreement shall terminate automatically without notice upon the expiry of the Licence Term or Extended Licence Term (as applicable).
6.3 Upon termination or expiry of this Agreement for any reason:
6.3.1 all rights granted to you under this Agreement shall cease; and
6.3.2 you must immediately cease all activities authorised by this Agreement.
6.4 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement including clause 3 (except clause 3.1), clause 4 and clause 6 shall remain in full force and effect. 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 Licence which existed at or before the date of termination or expiry.
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.
9. Entire agreement
9.1 This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter (including in relation to any previous versions of the Software).
9.2 Each party acknowledges that, in entering into this Agreement, 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 Agreement or not) (Representation) other than as expressly set out in this Agreement.
9.3 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 as expressly provided in this Agreement.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
12. No partnership or agency.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office (and in the case of Operis, its correspondence address) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first-class post or other next working day delivery service, commercial courier, fax or email.
13.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.1; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one working day after transmission.
13.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14. Third-party rights.
No one other than a party to this Agreement shall have any right to enforce any of its terms.
15. Governing law.
This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.