This licence agreement (Licence) for the CORTEX Products is between CORTEX Limited (CORTEX, or us or we), and the beneficial user of the CORTEX Products (Licensee or you). By downloading, installing, copying, accessing, or using the CORTEX Products, you agree to the terms and conditions of this Licence. By accepting these terms on behalf of another person, company or other legal entity, you represent that you have full authority to bind that person, company or legal entity to these terms. 

CORTEX Products means the CORTEX proprietary software; tools; methodologies; techniques; the associated media, printed materials and documentation as supplied from time to time in connection with the proprietary software (Documentation) together with all Derivative Works.

Derivative Work shall mean a work that is based upon or incorporates the CORTEX Product(s), in whole or in part, such as a revision, modification, enhancement, translation, abridgment, condensation, expansion, compilation, or any other form in which the CORTEX Product(s) may be recast, transformed, included, or adapted. 

1. GRANT AND SCOPE OF LICENCE

1.1 In consideration of the payment of any and all fees currently due to CORTEX, which shall include ongoing fees for enrolment in the service and support programme, including but not limited to installation, configuration, support, and after-sales services, as published from time to time by us, CORTEX hereby grants to you a non-exclusive, non-transferable licence to use the CORTEX Products on the terms of this Licence. For the purpose of this License, use of the CORTEX Products means the right to access, install, download, copy, or otherwise benefit from using the CORTEX Products. The confirmation notice (Grant Notice) and license keys granting the applicable product entitlements and usage rights is the definitive grant of rights and is binding on both parties.  

1.2 You may:

(a) download, install and use the CORTEX Products subject to the terms of this Licence and any specific limitations or rights granted in the Grant Notice;
(b) use the CORTEX Products in connection with a single CORTEX system database and standby site database and with a single set of CORTEX system data only at any one time unless prior express consent in writing is obtained from CORTEX and an additional fee is paid;
(c) only install the CORTEX Products to the number of CORTEX instances (host servers) as stated in the Grant Notice;
(d) make a reasonable number of copies of the CORTEX Products for back-up purposes appropriate to your stated backup strategy;
(e) use any Documentation in support of the use permitted under this Licence and make copies of the Documentation as is reasonably necessary for its lawful use.

2. PAYMENT 

2.1 You shall pay any invoice submitted strictly in accordance with the payment terms stated on it.

2.2 We reserve the right to include mechanisms to inhibit, limit or prevent normal operation of the CORTEX Products until you have made all payments arising in respect of the CORTEX Products, its support or this Licence.

3. LICENSEE’S UNDERTAKINGS

3.1 Except as expressly set out in this Licence, you undertake:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
  (i) not to attempt to copy (except where such copying is incidental to normal use of the CORTEX Products or where it is necessary for the purpose of back-up or operational security), modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the CORTEX Products (as applicable) in any form or media or by any means; or
  (ii) not to attempt to reverse-compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the CORTEX Products; 
(b) not to access all or any part of the CORTEX Products in order to build a product or service which competes with the CORTEX Products; 
(c) not to exceed the agreed number of License Units per instance (host server) or system as stated in the Grant Notice;
(d) not to use the CORTEX Products to provide a bureau service to third parties unless the bureau licensing option has specifically been purchased; 
(e) not to license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the CORTEX Products available to any third party;
(f) not to make alterations to, or modifications of, the whole or any part of the CORTEX Products nor permit CORTEX Products or any part of it to be combined with, or become incorporated in, any other programs, other than for the purpose of creating and maintaining necessary interfaces designed and maintained by us;
(g) to keep all copies of the CORTEX Products secure and to maintain accurate and up-to-date records of the number and locations of all copies of the CORTEX Products;
(h) to supervise and control use of the CORTEX Products and ensure that your employees and representatives use the CORTEX Products in accordance with the terms of this Licence;
(i) to include the copyright notice of CORTEX on all entire and partial copies you make of the CORTEX Products on any medium.

3.2 You must permit CORTEX and its representatives, at all reasonable times and on reasonable advance notice (although not more than once per calendar year), to inspect and have access to any premises at which the CORTEX Products is being kept or used, to the computer equipment located there, and to any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence and also to audit such records remotely where technically possible.

3.3 The rights provided under this Licence are granted to you only and shall not be considered granted to anyone else including without limitation your subsidiary or holding companies unless expressly authorised.

3.4 If you enter into a contract with a third party in which the third party manages your information technology resources (Managing Party), you may transfer all your rights to use the CORTEX Products to such Managing Party, provided that:
(a) the Managing Party only uses the CORTEX Products for your internal operations and not for the benefit of any other third party or the Managing Party;
(b) the Managing Party agrees in writing to comply with the terms and conditions of this Licence; and
(c) you provide CORTEX with written notice that a Managing Party will be using the CORTEX Products on your behalf.

4. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY

4.1 All intellectual property rights in the CORTEX Products throughout the world belong to CORTEX; the rights in the CORTEX Products are licensed (not sold) to you; and that you have no rights in, or to, the CORTEX Products other than the right to use them in accordance with the terms of this Licence.

4.2 You have no right to have access to the CORTEX Products in source code form or in unlocked coding.

4.3 The integrity of the CORTEX Products is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the CORTEX Products are not misappropriated.  You must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.

4.4 CORTEX shall defend you, your officers, directors and employees against any claim that the CORTEX Products infringe any United Kingdom patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
(a) CORTEX is given prompt notice of any such claim;
(b) you provide reasonable co-operation to CORTEX in the defence and settlement of such claim, at CORTEX’s expense; and
(c) CORTEX is given sole authority to defend or settle the claim.

4.5 In the defence or settlement of any claim, CORTEX may procure the right for you to continue using the CORTEX Products, replace or modify the CORTEX Products so that they become non-infringing or, if such remedies are not reasonably available, terminate this Licence on five (5) business days’ notice to you without any additional liability or obligation to pay damages or other additional costs to you. 

4.6 In no event shall CORTEX, its employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
(a) a modification of the CORTEX Products by anyone other than CORTEX;
(b) your use of the CORTEX Products in a manner contrary to the Documentation or other instructions given to you by CORTEX; or
(c) your use of the CORTEX Products  after notice of the alleged or actual infringement from CORTEX or any appropriate authority.

4.7 The foregoing states your sole and exclusive rights and remedies, and CORTEX’s (including CORTEX’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

5. WARRANTY

5.1 CORTEX warrants that during the period of sixty (60) days after the supply of the CORTEX Products to you (Warranty Period), the CORTEX Products will, when properly used, perform substantially in accordance with the functions described in the user manual and release notes supplied by us (provided that the CORTEX Products are properly used on the computer and with the operating system for which they were designed as referred to in such materials).

5.2 You acknowledge that the CORTEX Products have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the CORTEX Products as described in the Documentation meet your requirements.

5.3 You acknowledge that the CORTEX Products may not be free of errors or bugs and you agree that the existence of any minor errors shall not constitute a breach of this Licence.

5.4 If, within the Warranty Period, you notify CORTEX in writing of any defect or fault in the CORTEX Products in consequence of which they fail to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the CORTEX Products or used them in contravention of the terms of this Licence, CORTEX will, at its sole option, repair or replace the CORTEX Products, provided that you make available all the information that may be necessary to assist CORTEX in resolving the defect or fault, including sufficient information to enable CORTEX to recreate the defect or fault.

5.5 THE ABOVE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE CORTEX PRODUCTS ARE PROVIDED “AS IS” AND CORTEX MAKES NO WARRANTY OR GUARANTEE AS TO THEIR USE OR PERFORMANCE AND DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE CORTEX PRODUCTS WILL BE FAIL-SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS.

6. CORTEX’S LIABILITY

6.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, or for fraud or fraudulent misrepresentation.

6.2 Subject to clause 6.1, CORTEX shall not be liable for the following losses suffered by you arising out of or in connection with this Licence (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, even if such losses result from CORTEX’s deliberate personal repudiatory breach of this Licence: 
(a) loss of income;
(b) loss of business profits or contracts;
(c) business interruption;
(d) loss of the use of money or anticipated savings;
(e) loss of information;
(f) loss of opportunity, goodwill or reputation;
(g) loss of, damage to or corruption of data; or
(h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise. 

6.3 Subject to clause 6.1 and clause 6.2, CORTEX’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Licence shall be limited to a sum equal to 125% of the fee paid to CORTEX by you for the relevant module of the CORTEX Products giving rise to the liability in the twelve months preceding the claim.

6.4 CORTEX shall have no liability to you under this Licence if it is prevented from or delayed in performing its obligations under this Licence, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of CORTEX or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, natural disaster, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.

7. CONFIDENTIAL INFORMATION

7.1 Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information (Confidential Information) by the other party in order to perform its obligations under this Licence.  A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

7.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Licence.

7.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Licence.

7.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

8. OTHER TERMS FOR EVALUATION AND BETA SOFTWARE  

8.1 Evaluation Software: If the CORTEX Products have been supplied on an evaluation basis (Evaluation Software), then the provisions of this clause 8 apply and shall override any other conflicting term of this Licence. Your royalty-free, non-transferable, limited licence to use the Evaluation Software, for evaluation purposes in a non-production environment only is limited to ninety (90) days unless otherwise expressly agreed to in writing by CORTEX (Evaluation Period). The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you “AS IS” and CORTEX disclaims any warranty or liability obligations to you of any kind. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. If you fail to destroy the Evaluation Software after the Evaluation Period has expired, CORTEX may, at its discretion, invoice you for an amount equal to the CORTEX list price for the Evaluation Software and you shall pay such invoice upon receipt. 

8.2 WHERE LEGAL LIABILITY FOR EVALUATION SOFTWARE CANNOT BE COMPLETELY EXCLUDED UNDER CLAUSE 8.1 ABOVE, BUT MAY BE OTHERWISE LIMITED, CORTEX’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE SUBJECT TO CLAUSES 6.1 AND 6.2 AND BE LIMITED TO THE SUM OF FIFTY (50) POUNDS GBP OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.

8.3 Beta Software: If the CORTEX Products that you have received has been supplied on a beta software basis (Beta Software), CORTEX has no obligation to you to further develop or publicly release the Beta Software. If requested by CORTEX, you will provide feedback to CORTEX regarding testing and use of the Beta Software, including error or bug reports. You agree to grant CORTEX a perpetual, non-exclusive, royalty-free, worldwide licence to use, copy, distribute and make Derivative Works and incorporate the feedback into any CORTEX Product at CORTEX’s sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by CORTEX of a publicly released commercial version of the Beta Software, you agree to return or destroy all earlier Beta Software received from CORTEX.

8.4 “Free” or “Open-Source” Software: The product may include programs or code that are licensed under an Open Source Software (“OSS”) licence model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS licence and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS LICENCE. 

9. EXPORT LIMITATIONS

9.1 You acknowledge that the CORTEX Products are subject to US, UK and European Union export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the CORTEX Products will be imported and/or exported. You shall not export the CORTEX Products to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the CORTEX Products.

10. TERMINATION

10.1 This Licence shall continue in force as described in the Grant Notice.

10.2 The CORTEX Products licensed under this Licence may be amended by either party giving not less than ninety (90) days’ written notice of such amendment (in which case the terms of this Licence shall continue in force in respect of the remaining CORTEX Products). 

10.3 Use of the CORTEX Products requires you to be enrolled in a CORTEX approved service and support programme. 

10.4 CORTEX may terminate this Licence immediately on written notice to you if: 
(a) you commit a material or persistent breach of this Licence (which shall include a payment obligation) which you fail to remedy (if remediable) within fourteen (14) days after the service on you of written notice requiring you to do so; or
(b) the Licensee becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986).

10.5 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must cease all activities authorised by this Licence; and
(c) you must immediately delete or remove the CORTEX Products from all computer equipment in your possession and immediately destroy or return to CORTEX (at CORTEX’s option) all copies of the CORTEX Products then in your possession, custody or control and, in the case of destruction, certify to CORTEX that you have done so;
(d) any amounts due from you shall become immediately payable. 

10.6 The following clauses shall survive termination of this Licence, however arising: clause 4 (Intellectual Property Rights and Indemnity); clause 6 (CORTEX’s Liability); clause 7 (Confidential Information); this clause 10.6; clause 12 (Waiver); clause 14 (Entire Agreement) and clause 15 (Law and Jurisdiction).

11. TRANSFER OF RIGHTS AND OBLIGATIONS

11.1 This Licence is binding on you and us and on our respective successors and assignees.

11.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.

12. WAIVER

12.1 If we fail, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

12.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.

12.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

13. SEVERABILITY

If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

14. ENTIRE AGREEMENT / MISREPRESENTATIONS

14.1 This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the CORTEX Products and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.

14.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or which can be implied from anything said or written in negotiations between us prior to entering into this Licence except as expressly stated in this Licence.

14.3 Neither you nor we shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these terms and conditions.

15. LAW AND JURISDICTION

If any dispute arises in connection with this Licence, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.  The commencement of a mediation will not prevent the parties commencing or continuing court proceedings. This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.