End User License Agreement

CREATIVE JAR TECHNOLOGY LIMITED

END USER LICENCE AGREEMENT

NOTICE TO USER: PLEASE READ THIS END USER LICENCE AGREEMENT (“LICENCE AGREEMENT”) CAREFULLY. BY DOWNLOADING AND/OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU (“LICENSEE”) ACCEPT THE FOLLOWING TERMS FROM CREATIVE JAR TECHNOLOGY LIMITED OF REGISTERED ADDRESS ADAM HOUSE, 71 BELL STREET, HENLEY-ON-THAMES, OXFORDSHIRE, RG9 2BD (“CREATIVE JAR TECHNOLOGY”). YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT. YOU AGREE THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED LICENCE AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, DO NOT USE THE SOFTWARE.


1.Definitions

1.1“Licence Commencement Date” means the date the Licensee downloads the Software;

1.2“Licence Fee” means the non refundable licence fee payable by Licensee in advance in respect of the Use of the Software, as specified in on the website operated Creative Jar Technology.

1.3“Adobe” means Adobe Systems, Inc. 345 Park Ave.San Jose, CA 95110-2704;

1.4“AIR” means a product owned by Adobe;

1.5“Minimum Requirement” means a minimum technical specification of , on Windows, Intel® Pentium® 1GHz or faster processor, Microsoft® Windows® 2000 with Service Pack 4; Windows XP with Service Pack 2; or Windows Vista® Home Premium, Business, Ultimate, or Enterprise, 512MB of RAM, on Mac, PowerPC® G4 1GHz or faster processor or Intel Core™ Duo 1.83GHz or faster processor, Mac OS X v10.4.910 or 10.5.1 (PowerPC); Mac OS X v10.4.9 or later, 10.5.1 (Intel), 512MB of RAM, on the PC, server and/or laptop on which the Software is Used which is required to enable the Software to function.

1.6“Permitted Number” shall mean one (1) PC, server or laptop on which Licensee is permitted to install the Software under this Licence Agreement.

1.7“Purpose” means use of the Software by the Licensee for its internal business purpose or any other purposes as mutually agreed between the parties;

1.8“SHU Application” means an application tool which forms part of the Software;

1.9“Software” means the all of the contents of the electronic materials and files which shall include without limitation the SHU Application which Licensee accesses or downloads in connection with this Licence Agreement.

1.10“Use” or “Using” means to access, install, download or otherwise benefit from using the functionality of the Software.


2.Grant of Rights; Restrictions

2.1Subject to all the terms and conditions of this Agreement and in consideration for the payment of the Licence Fee, Creative Jar Technology hereby grants the Licensee a perpetual (terminable only as provided in clause 5), worldwide, non-exclusive, transferable as stated in clause 8.1 to install and Use the Software on the Permitted Number of PCs, servers or laptops, for internal purposes only.

2.2Except as expressly permitted in this Licence Agreement, the Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices) or any confidential information provided by Creative Jar Technology, in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form; (iii) distribute, sublicence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or the Licensee’s right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of Creative Jar Technology affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Licence Agreement.

2.3The Licensee agrees, subject to reasonable prior notice, to give Creative Jar Technology such access and assistance to the Licensee’s systems as may be necessary to confirm the number of users does not exceed the Permitted Number or otherwise to confirm Licensee’s compliance with this Licence Agreement.

2.4The licence(s) granted hereunder are in respect of Use of the Software by Licensee only and no intermediate or ultimate holding company, subsidiary, subsidiary of any such holding company, or agent of the Licensee or any other third party may Use the Software


3.Proprietary Rights

3.1Creative Jar Technology has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence Agreement conveys a limited licence to Use the Software and shall not be construed to convey title to or ownership of the Software to Licensee. All rights in and to the Software not expressly granted to Licensee are reserved by Creative Jar Technology. The Software is protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorised use of it may violate such laws and this Licence Agreement. Except as expressly provided herein, Creative Jar Technology does not grant any other express or implied rights to use the Software.

3.2Licensee agrees that it and its employees will keep the Software and any material related to the Software provided by Creative Jar Technology strictly confidential. This clause shall not apply to any information which is already in the public domain other than through a breach of this Licence Agreement.


4.Licence Fee

4.1In consideration for the licence for the Software granted to Licensee under clause 2, Licensee shall pay Creative Jar Technology a non-refundable Licence Fee in advance. The Licence Fee shall be due and payable on the Licensee Commencement Date. The Licence Fee is exclusive of VAT or other sales tax.

4.2In the event that the Licence Fee is not paid in accordance with the provisions herein, this Licence Agreement shall forthwith terminate without notice, and the provisions of clause 5.3 shall take effect.

4.3If any applicable law requires Licensee to withhold amounts from any payments to Creative Jar Technology hereunder, (i) Licensee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Creative Jar Technology with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by Licensee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Creative Jar Technology receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Creative Jar Technology would have received and retained in the absence of such required deduction or withholding.


5.Termination

5.1This Licence Agreement shall commence on the Effective Date and continue in perpetuity unless and until the Licence Agreement is terminated in accordance with clauses 4.2 and 5.2.

5.2If Licensee breaches this Licence Agreement in any material respect, Creative Jar Technology may give written notice to Licensee of its intent to terminate, and if such breach is not cured within thirty (30) days after Licensee’s receipt of such notice, this Licence Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).

5.3Upon the termination of this Licence Agreement (however arising), (a) all rights and licences granted to the Licensee under this Licence Agreement shall terminate forthwith without notice; (b) the Licensee shall cease all Use of the Software; and (c) all copies of the Software in the Licensee’s possession or under its control must be returned to Creative Jar Technology at the Licensee’s expense; and (d) the Licensee shall certify in writing to Creative Jar Technology its compliance with the foregoing. Clauses 1, 3, 4 (to the extent of unpaid obligations) and 5.3, 7 and 8 shall survive any termination of this Licence Agreement.

6.Representations and Warranties

6.1LICENSEE AGREES THAT CREATIVE JAR TECHNOLOGY PROVIDES NO EXPRESS OR IMPLIED WARRANTIES, ORAL OR WRITTEN, REGARDING THE SOFTWARE OR ANY MATERIALS PROVIDED BY CREATIVE JAR TECHNOLOGY HEREUNDER AND THAT SUCH SOFTWARE AND MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CREATIVE JAR TECHNOLOGY HEREBY EXCLUDES AND DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO SUCH SOFTWARE AND MATERIALS, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS (EXCEPT IN RELATION TO CONSUMER LICENSEES IN WHICH CASE ONLY SUCH WARRANTIES AND IMPLIED TERMS THAT CANNOT BE EXCLUDED WILL REMAIN IN FORCE).

6.2The Licensee acknowledges and agrees that it shall not have the right to redistribute AIR as part of the Software output without the consent of Adobe. The Licensee hereby warrants that where it wishes to redistribute AIR as part of the Software output , it shall, on its own accord, expense, risk and liability procure the consent of and comply with the terms and conditions set out by Adobe.

6.3The Licensee represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.


7.Limitation of Liability

7.1The Licensee’s sole remedy with respect to any claims arising out of this Licence Agreement shall be limited in the aggregate to the sum paid by the Licensee to Creative Jar Technology under this Licence Agreement.

7.2IN NO EVENT SHALL CREATIVE JAR TECHNOLOGY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND GOODWILL, BUSINESS OR BUSINESS BENEFIT, OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY LICENSEE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CIRCUMSTANCES SHALL CREATIVE JAR TECHNOLOGY BE LIABLE FOR ANY FAILURE OF THE SOFTWARE TO PERFORM OR ANY FAILURE RESULTING FROM A FAILURE BY LICENSEE TO COMPLY WITH THE MINIMUM REQUIREMENTS. ADDITIONALLY, LICENSEE ACKNOWLEDGES THAT WHILST THE SOFTWARE MAY BE USED IN COMBINATION WITH THIRD PARTY SOFTWARE, CREATIVE JAR TECHNOLOGY BEARS NO LIABILITY, HOWSOEVER ARISING, FOR ANY LOSS, DAMAGE OR COST THAT ARISES FROM A FAILURE OF THE SOFTWARE TO INTEGRATE WITH LICENSEE OR THIRD PARTY SOFTWARE.

7.3The Licensee shall indemnify Creative Jar Technology against any claims for loss or damage of any kind (i) due to a breach by the Licensee of clause 6.2; or (ii) suffered by a third party from the use by that third party of any application developed using the Software.


8.General

8.1Licensee shall not assign this Licence Agreement, in whole or in part, without the written consent of Creative Jar Technology, provided however that Licensee shall be permitted to transfer the Licence Agreement to a third party purchaser of the hardware upon which the Software is installed.

8.2Licensee consents to the use by Creative Jar Technology of Licensee’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Licensee and Creative Jar Technology.

8.3This Licence Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.

8.4Licensee agrees that because of the unique nature of the Software and Creative Jar Technology’s proprietary rights therein, a demonstrated breach of this Licence Agreement by Licensee would irreparably harm Creative Jar Technology and monetary damages would be inadequate compensation. Therefore, Licensee agrees that Creative Jar Technology shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.

8.5If any provision of this Licence Agreement or part thereof is declared void, illegal, or unenforceable, the remainder of this Licence Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

8.6Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Licence Agreement.

8.7Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the non-performing party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

8.8Save for any terms evidenced in writing or by e-mail pursuant to the terms in this Licence Agreement: (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof; and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by Licensee shall supersede this Licence Agreement.

8.9Nothing in this Licence Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against Creative Jar Technology and such third parties shall not be entitled to enforce any term of this Licence Agreement against Creative Jar Technology.

If you have any questions regarding this Licence Agreement or if you wish to discuss the terms and conditions contained herein please contact at info@cjtech.co.uk or at www.cjtech.co.uk.