Opus Pro 9.02

EULA - End User License Agreement

END USER LICENCE AGREEMENT
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NOTE: This is a licence not a sale.

1.1: Grant of Licence

Digital Workshop (Software) Ltd [DWS] hereby grants to the Licensee a non-exclusive Licence to use the Software, the Resources, Help file, Manuals and accompanying Resources [together the Licensed Materials] and to distribute publications created with the Software from the date of delivery subject to payment as detailed under clause 7.1 so long as the following terms are adhered to.

1.2: Acceptance and Installation by Third Party

Installation and use of the Licensed Materials shall be deemed acceptance of this Licence by the Licensee. Any third party installing the software for the Licensee is considered to be acting as agent of the Licensee and should only install the software if authorised by the Licensee to do so and to legally enter into this Licence Agreement on behalf of the Licensee.

2.1: Licence Keycode

Unlimited use of the Software is only permitted via use of a valid unique Licence Keycode supplied with each Licence. The Licensee should keep a record of this Licence Key. The Licensee agrees to keep this Licence Keycode confidential subject to convenient use of the Software and shall not allow third parties to use the keycode to unlock additional unlicensed copies of the Software.

3.1: Distribution of Publications

Material created using the product and published to an independent format not requiring the use of the Software [Publications] may be distributed freely, whether for profit or not, without prior permission of DWS, in perpetuity - unless the Licensee has failed to pay, or been reimbursed, the purchase price of The Software. In which case the Licensee must make all reasonable efforts to ensure all copies of all publications created with the Software are destroyed within 3 months of written notification of the requirement to do so.

The Licensee may, at its sole discretion impose licence conditions on the use and distribution of publications it creates as it sees fit.

3.2: Use and Distribution of Plugin

The Software includes a piece of software which facilitates viewing of the Publications in a web browser [the Plugin]. It is included in the installation of the Software and is automatically downloaded from the Licensor’s website when required by both Licensed users and third parties.

3.2.1: The Licensee may also download a separate installation of the Plugin from the Licensor’s website [Plugin Installer].

3.2.2: The Plugin and the Plugin Installer remain the copyright property of DWS but may be freely distributed, copied, installed and used without prior permission of DWS by both Licensees of the Software and any third party on an “as is” basis without warranty any kind.

3.3 Distribution of Resources

As part of the Licensed Materials the Licensor provides a range of images, music, sound effects, designs, example publications and scripts. These are provided as part of the installation of the Software and, from time to time, via the Licensor’s website. These resources remain the copyright property of the Licensor but may be freely-distributed within publications created using the Software. They may not be distributed separately from the original installation of the Software, except where explicitly stated or with prior written agreement of DWS.

3.3.2: Any Third Party Material, including music resources, fonts, videos, images, text and other content included in publications created by the Licensee remains the property of their copyright holders and no rights in them shall pass to the Licensor or the Licensee purely by virtue of their compilation into the distributable output of The Software.

3.3.3: It is the responsibility of the Licensee to ensure that any Third Party Material used in a Publication may be legally included (and, if appropriate, distributed) in said publication and that any Publication created by the Licensee does not contain material subject to copyright restriction. The Licensee will ensure that it has obtained the appropriate rights to use the Third Party Material in the way it is doing.

4.1: Single User Licence - Use of Additional Machines

The Licensee may install the Software on more than one machine but only for the convenient use by a single user. Thus the user may install the Software on a desktop at work and a laptop for work outside the office or at home but may not allow the Software to be used on any of those installations by anyone other than the individual Licensee.

5: Transfer of Licence

5.1: Should the Licensee no longer require use of the Software, the Licensee may permanently transfer this Licence, along with a copy of the Software to a third party without additional permission from DWS so long as the original Licensee does not continue to use the Software and destroys all copies of same and the new Licensee agrees to be bound by the terms of this Licence.

Any publications created by the original Licensee prior to the transfer can still be distributed by the original Licensee.

6: Additional Copies and Manual Printing

6.1: The Licensee may make up to two copies of the installation Software to retain as backup as required to ensure ongoing use and for disaster recovery, hardware updates or reinstallation. Such copies remain the property of the Licensor and subject to this Licence.

6.2: The Licensee shall not rent, lease, hire or copy or make any copies of Licensed Materials, nor permit others so to do, except that the Licensor herewith gives permission that the accompanying Manuals and/or Help files may be printed to hard copy by a third party but only where such hard copy is for the use of the Licensee.

7: Payment and Credit

7.1: This licence shall be rendered void if the Licensee fails to pay the Licensor for this licence within the agreed credit period, or if any payment previously made is reversed, later found to be fraudulent or subject to a chargeback.

8: Proprietary Rights & Copyright Infringement

8.1: The Licensee does not acquire any proprietary rights in Licensed Materials, even where elements of the Software and or Resources are legitimately re-distributable under this licence. Equally the Licensor does not acquire any proprietary rights in material created by the Licensee using the Licensed materials.

8.2 The Licensee agrees not to remove or modify proprietary marks, logos, or copyright notices on or in any of the Licensed Materials, nor remove or modify or otherwise obscure the Licensor’s company details or the name and other identifying characteristics of the Software.

8.3 The Licensee shall not make any modifications, additions or enhancements to Software beyond the facilities built into the Software for so doing.

8.4 The Licensee will not reverse engineer any part of the software nor reuse any of the publicly-viewable elements (for example HTML wrappers) for any reason beyond the use provided for by the operation of the Software.

8.5 The Licensor shall indemnify the Licensee against any claims resulting of any infringement of copyright or any intellectual property rights of a third party provided the Licensee promptly informs the Licensor of such infringement and the Licensee takes all reasonable actions to mitigate the claim.

8.6 The Licensor may at its own expense modify or replace the Licensed Materials so as to avoid infringement.

9 Multi-User Licences

The following section (9) applies ONLY to customers who have purchased multi-user or site licences.

9.1 The control and distribution of The Software and Licensed Materials is to be the responsibility of the nominated systems administrator(s) of the licensed site for the licensee.

9.2 For Licences specifying a particular number of users this number shall be the maximum number of separate instances of the Software running at any one time whether on the same network or on individual workstations or laptops

9.3 For Licences designated on your invoice as a Site Licence, the number of concurrent users is unlimited within the Licensed Organization.

9.4 For Licencees with Site Licences ONLY the Software may be used by any employee, student or other persons authorised by the Licensee for the purposes of the normal business of the Licensed Organization, whether or not they are located on the Licensee's premises, but only where the use is directly part of, or essential for, conduct of the Licensee’s business and its core purpose.

9.4.1 This does not include, for example, use of the Software in paid for consultancy or services involving commercial exploitation of the Software, or which results in a Publication distributed by an Organization other than the Licensed Organization.

9.4.2 The Software may not be used for work done by students on work placements or part time courses, for the commercial benefit of their employer.

10: Warranty

10.1 The Licensor warrants that when used in accordance with the Licensor's instructions and on a recommended hardware configuration the Software will perform substantially in accordance with the functionality outlined in the online Help file supplied as part of Licensed Materials subject to clause 10.4.

10.2 The Licensor does not warrant that the functions or facilities of the Software will meet the Licensee's requirements or that operation of the Software will be uninterrupted or error free.

10.2 The Licensee acknowledges that it is the Licensee's responsibility to ensure that the facilities and functions described in Licensed Materials meet the Licensee's requirements and match any representations relied on by the Licensee in purchasing this licence. A fully-functioning demo version of the Software is provided in order to facilitate this and to fully test fitness for purpose.

10.3 Where parts of the Licensed Materials have been customised to more closely match a particular requirement of the Licensee an evaluation period of 60 days is allowed during which time the Licensee may identify failings in the operation of the software relevant to the customisation. Licensor may, at its sole discretion choose to rectify the problem within a reasonable period or refund the cost of the customization less any reasonable costs.

10.4 The Licensee acknowledges that the Software is entirely dependent on functionality provided by the Windows operating system and changes to that OS are beyond the Licensor’s control. Specific functionality is also dependent on software created and supplied by other third parties – including but not limited to Adobe Flash. The Licensee accepts that the Licensor cannot be held responsible for any change or failure in functionality caused by changes to the software so relied upon.

10.5 The Licensee shall notify the Licensor in writing and provide documented examples of any defects or errors in the Software. The Licensor undertakes to correct or replace at the Licensor's option and expense within a reasonable period of time Software which is demonstrated to fail to perform in accordance with the warranty.

10.6 The Licensee's sole and exclusive remedy shall be limited to the correction or replacement of the Software in whole or in part, or (at the Licensor’s sole discretion) the Licensor may rescind this Licence and refund the purchase price of the Software less any appropriate costs. In the latter instance the Licensor reserves the right to rescind the licence to distribute publications created using the program where it is reasonable to do so.

11. Limitations of Liability

11.1  The Licensor shall not in any circumstances be liable to the Licensee or any third party whether in contract, tort or otherwise for any consequential, direct or indirect loss, liability, cost, liability or damage howsoever arising (including misrepresentation) and of whatsoever nature suffered or incurred by the Licensee including (without limitation) loss of profits, loss of contracts, loss of data, loss of operation time or loss of use of any equipment or process suffered indirectly by the Licensee and loss of anticipated savings.
Except, in the case of businesses and consumers based in the UK, for liability for death or personal injury resulting from Licensor’s negligence; fraud, for breach of the obligations arising from the Sale of Goods Act 1979; or the Consumer Protection Act 1987.

11.2 If you are operating as a consumer normally residing in the UK and you feel any of the terms of this License are unfair and therefore subject to the Unfair Contract Terms legislation then you may request a modification of any terms. Such request to made within 60 days of the supply of the product. Nothing in this licence affects your statutory rights as a consumer.

11.3 In all instances, except death and personal injury, the aggregrate maximum liability is limited to the cost of the defective product.

11.4 The onus for testing to functionality and fitness for purposes of any material created by the Licensee using this Software falls on the Licensee. The Licensee hereby indemnifies the Licensor for any and all claims arising from use of material created by the Licensee with the Licensed Materials except where covered elsewhere in this licence.

General Terms

12.1 If the Licensor shall go into administration or liquidation or make an arrangement with its creditors then the Licensee shall have the right to continue to use the Licensed Materials in accordance with this Licence in perpetuity.

12.2 Termination of this Licence howsoever caused shall not affect the rights of either party under this Licence which may have accrued up to the date of termination.

12.3 If any provision of this Licence shall finally be held illegal or unenforceable such provisions shall be severed and the remainder of the Licence shall remain in full force and effect unless the business purpose of the Licence is substantially frustrated thereby.

12.4 No waiver of any breach of this Licence shall constitute a waiver of any other breach of the same or other provision of this Licence and no waiver shall be effective unless made in writing.  

12.5 The Licensor will provide technical support via email during normal UK business hours. Licensor may also provide support outside those hours or by telephone at its sole discretion.

Technical support shall refer specifically to errors in the product or failures of operation not to problems caused by the failure of the Licensee to understand the operation of the Software or to require functionality beyond their understanding of the operation of the software.

12.6 The Licensor may upon reasonable notice and within normal working hours send a representative to any Site at which the Software is in use to verify compliance with this Licence.

12.7 This represents the entire agreement between the two parties and is subject to English law and the jurisdiction of the English courts.