stl terms and conditions software license

8/13/2019 STL Terms and Conditions Software License

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SOFTWARE LICENCE AGREEMENT

This Agreement is made on the date indicated in the Quotation between:

(1) SAFE TECHNOLOGY LIMITED (registered in England with company number 03483402)whose registered office is at 1 The South West Centre, Archer Road, Sheffield, S8 0JR (Safe

Technology); and

(2) The person, partnership, company or other undertaking indicated as the Customer in theQuotation (the Customer).

RECITALS

(A) The Parties have been in negotiation regarding the supply of certain computer software.(B) The Customer wishes to purchase a licence of the Software indicated below.(C) The Parties have agreed to enter into this Software Licence Agreement to define their

contractual rights and liabilities between themselves and to regulate the other documentation

which has been produced in the course of those negotiations.

IT IS AGREED AS FOLLOWS:

1. DEFINITIONSIn this Software Licence Agreement:

Additional Charges

means any additional charges due under this Software Licence Agreement which,

where appropriate, shall be calculated by Safe Technology in accordance with

Safe Technologys standard rate for time, materials, travel, accommodation and

subsistence from time to time prevailing;

Associated Company

means a company directly or indirectly controlled by or under the same control,

direct or indirect, as the Customer;

Business Day

means a day on which banks in London are open for a full range of banking

transactions but excluding Christmas Eve and excluding also all the days between

Christmas and New Year;


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Clause

means a clause of this Software Licence Agreement;

Consequential Loss

means pure economic loss, loss of profit, loss of use of trade marks, loss of

business and like loss;

Copy

means an individual copy on electromagnetic recording material of one or more of

the programs constituting the Software;

Designated System

means the Operating System Software, the Finite Element Analysis Software, and

the Hardware;

Excepted Services

means those services which are not included within the Software Maintenance

Services because the fault arises in a circumstance referred to in Clause 3.8 or 3.9

below;

Finite Element Analysis Software

means the finite element analysis software with which the Software is intended to

run which finite element analysis software is identified by name and version

number in the User Manual;

Hardware

means the hardware upon which the Software is intended to run which hardware is

identified in the User Manual;

Intellectual Property Right

means a patent, right in a design, copyright, trade mark and any other intellectual

property right whether or not registered or capable of registration;

Loss of Data

means a loss of or corruption to data or programs held or used by or on behalf of

the Customer;

Operating System Software

means the operating system software upon which the Software is intended to run

which operating system software is identified by name and version number in the

User Manual;

Party

means Safe Technology or the Customer;


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Quotation

means the relevant quotation supplied by Safe Technology (and in the event no

such quotation has been supplied then the relevant invoice supplied by Safe

Technology);

Renewal Datemeans an anniversary of the date of supply of the Software Licence Key;

Services

means the Services (if any) indicated in the Quotation together with any other

services from time to time agreed to be supplied by Safe Technology to the

Customer;

Site

means the Customers premises indicated in the Quotation;

Software

means the computer software licensed to the Customer by Safe Technology under

this Software Licence Agreement including the software indicated in the

Quotation together with any other software supplied from time to time by Safe

Technology to the Customer;

Software Licence Fee

means the licence fee indicated in the Quotation for the Software being the fee

payable in respect of the right to use the Software under this Software Licence

Agreement;

Software Licence Key

means an alphanumeric sequence supplied to the Customer to allow the Customer

to use the Software;

Software Maintenance Charges

means the annual charges for Software Maintenance Services for the Software in

accordance with Clauses 3.1 to 3.4 inclusive below;

Software Maintenance Services

means the provision of the maintenance services as detailed in Clause 3.5 below;

Termination Event

means any of the following events:

(a) the Customer fails to pay any moneys due under this Software LicenceAgreement within fourteen (14) days of the due date;

(b) the Customer breaches a term or condition of this Software LicenceAgreement (other than a term or condition requiring payment of moneys as


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provided for within paragraph (a) above) and (in the case of a breach

capable of being remedied) fails to have remedied such breach within thirty

(30) days of a written request by Safe Technology so to do;

(c) (where the Customer is a company or a limited liability partnership) (andotherwise than for the purposes of an amalgamation or reconstruction of a

solvent company) the Customer convenes a meeting of its creditors or aproposal is made for a voluntary arrangement within part 1 of the

Insolvency Act 1986 or a proposal is made for a composition, scheme or

arrangement with (or assignment for the benefit of) its creditors or if the

Customer is unable to pay its debts within the meaning of section 123 of the

Insolvency Act 1986 or a trustee, receiver, administrator, administrative

receiver or a similar officer is appointed in respect of all or a part of the

business or assets of the Customer or a petition is presented or a meeting is

convened for the purpose of considering a resolution or other steps are

taken for the winding up of the Customer or for the making of an

administration order or (where the Customer is established in a country

other than the United Kingdom) an event takes place in the territory inwhich the Customer is established which is similar to any of the foregoing;

(d) the Customer ceases to carry on business or threatens so to do;Third Party

means a person, partnership, company or any other undertaking not being Safe

Technology or the Customer;

Training Services

means the Services (if any) to be provided by way of training as indicated in the

Quotation;

User Manual

Means the user manual supplied or made available with the Software;

Working Hours

means the hours of 9:00 a.m. to 5:00 p.m. during a Business Day.

2. SOFTWARE LICENCE2.1

Notwithstanding a description of the Customers rights as or by virtue of a sale (andwhether made orally or in writing and whether made in this Software Licence Agreement or

in any other document) the Customers only right to use the Software is by virtue of the

licence granted under this Software Licence Agreement and the Customer acknowledges

that all Intellectual Property Rights in or relating to the Software and all related

documentation are and shall remain the exclusive property of Safe Technology or in the

case of Software licensed to Safe Technology by a Third Party licensor, the exclusive

property of such licensor.


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2.2 Subject to payment by the Customer to Safe Technology of the Software Licence Fee, SafeTechnology hereby grants to the Customer a non-exclusive non-transferable licence to use

the Software for a period of one year (where the Customer has purchased an annual licence)

or for a period of twenty five (25) years (where the Customer has purchased a twenty five

(25) year licence) from the date of this Software Licence Agreement upon the terms and

conditions of this Software Licence Agreement. The period of the licence purchased by the

Customer is as indicated in the Quotation.

2.3 This licence shall be deemed to incorporate and include all software which is supplied fromtime to time to the Customer by Safe Technology and whether such further or bespoke

software is expressly referred to in the Quotation or not (including without limitation any

further or bespoke software from time to time created by Safe Technology for the Customer

as part of the Services). The provisions of this Clause 2.3 are without prejudice to Safe

Technologys right to charge the Customer for the supply of such further or bespoke

software.

2.4 The licence hereby granted and the Customers rights to use the Software are subject to thefollowing restrictions:

2.4.1 the Software shall be used only by the Customer for the purposes of the Customers owninternal business at the Site or at such other location as Safe Technology may previously

agree in writing;

2.4.2 the Software shall be used only by the Customer for the purpose of fatigue lifepredictions in accordance with the User Manual and the licence type granted, as

indicated further in clause 2.14 below;

2.4.3 the Software shall be used only in conjunction with the Designated System;2.4.4 the Customer shall use the Software only for the number of simultaneous users as

indicated in the Quotation;

2.4.5 the Customer shall not assign, sub-licence, charge or otherwise dispose of or grant rightsover or out of the licence hereby granted or the Software and shall not attempt to do any

such thing;

2.4.6 the Customer shall not copy or reproduce in any way the whole or a part of the Softwarein machine or eye readable form except that the Customer may maintain a reasonable

number of Copies of the Software in machine readable form for normal operational

security and back-up purposes and this licence applies to any Copy as it applies to the

original Copy of the Software supplied to the Customer;

2.4.7 the Customer shall not attempt to ascertain or list the source programs or source coderelating to the Software; and

2.4.8 the Customer shall not decompile or translate the Software into any other computerlanguage nor attempt so to do.

2.5 The Customer agrees not to use the Software or the associated documentation save inaccordance with the terms and conditions of this Software Licence Agreement.


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2.6 Save as provided in Clause 2.4.6 above, the Customer shall only use the single originalCopy of the Software provided on the electromagnetic or optical recording material

supplied to the Customer by Safe Technology.

2.7 The Customer shall not interfere with or attempt to circumvent the operation of anySoftware Licence Key or other device whose function is to prevent the unlawful copying or

use of the Software.

2.8 Where the Customer uses a Software Licence Key or other device in order to permitadditional Copies of the Software to be used in excess of those which the Customer has

been licensed to used pursuant to this Software Licence Agreement, then the Customer shall

be liable to pay Safe Technology on demand three times the cost of licence fee that would

normally have been payable for the licence of those additional Copies.

2.9 The Software Licence Key is designed to permit the Software to be used on a givencomputer or in conjunction with a given server. In the case of a given server, the Software

Licence Key is designed to permit the Software to be used on a given number of computers

that are simultaneously connected to that Server. The Customer acknowledges that SafeTechnology may lock the Software using the Software Licence Key or other technical

means to ensure that the Software is only used within the bounds of the licence granted by.

Without limitation, the Customer acknowledges that Safe Technology may lock the

Software using the Software Licence Key or other technical means to ensure that the

Software is not used until the appropriate Software Licence Fee has been paid.

A Software Licence Key generally lasts for a period of one year (less in the case of an

evaluation licence). Where the Customer has bought a licence to use the Software for

twenty five (25) years, Safe Technology shall issue a new Software Licence Key annually.

A Software Licence Key is generally limited to the use of a specified version. Where the

Customer has bought maintenance and is entitled to use a new version, Safe Technology

shall issue a new Software Licence Key enabling the Customer to use that new version. In

either circumstance, Safe Technology makes no guarantee as to the Customers continuity

of use of the Software or for any delay in issuing a new Software Licence Key (howsoever

arising).

2.10 The Customer may use the Software only from the single location which is the Site. Wherethe Customer wishes to use the Software from more than one site via a multi-site network,

an additional multi-site licence fee is chargeable for such use, and that additional licensed

use will be indicated in the Quotation.

2.11 Where the Customer operates from more than one site, the Customer may use the Softwareonly for the purposes of the business which it carries on at the Site. Without limitation tothe foregoing sentence, the Customer may not use the Software at the Site remotely by

means of a telecommunication, internet or other link with the Site from another of the

Customers locations (save for another location within the Site) or from any other location;

save where it is indicated in the Quotation that a multi-site licence is granted to the

Customer.


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2.12 Where the Customer wishes to change the Site at or from which the Software may be used,then the Customer may do so upon payment of Additional Charges for the same to Safe

Technology.

2.13 For the avoidance of doubt, where the Customer has more than one operating division of theCustomer at the Site, then the Customer may use the Software for the internal work of all

the operating divisions at the Site.

2.14 Where Safe Technology grants an evaluation, academic or teaching licence to the Customer(as indicated in the Quotation) then the Customer acknowledges that it must not permit the

use of the Software for any non-academic or commercial purposes including without

limitation for calculating a fatigue analysis in return for a fee. Where the Customer uses or

permits the use of the Software in breach of the provisions of the previous sentence then the

Customer shall pay Safe Technology a further Licence Fee equal to one hundred and fifty

percent (150%) of the fees already charged to the Customer by Safe Technology in respect

of the academic or teaching licence.

For the avoidance of doubt:

a) The nature of a given licence of the Software is set out in the Quotation for thatlicence and also in the about section of the on-screen help function within the

Software.

b) Where the Customer is granted an evaluation licence of the Software, then (i) theSoftware may be used only for the number of days specified by Safe Technology or

(if sooner) until the expiry of the evaluation period and (ii) the Customer shall not

make any commercial use of the Software.

c) Where the Customer is granted a teaching licence of the Software, then (i) theSoftware may be used only for the purposes of teaching and (ii) the Customer shallnot or make any commercial use of the Software.

d) Where the Customer is granted a teaching and research licence of the Software,then the Software may be used only for the purposes of teaching and also to analyse

real-life designs or proposed designs, provided that those designs are (i) not sold or

otherwise commercially exploited or (ii) products to those designs are not sold or

otherwise commercially exploited.

2.15 The Customer acknowledges and agrees that none of the acts which are prohibited by theprovisions of this Software Licence Agreement (including, without limitation, the

prohibitions on copying or adapting the Software or any part for the purpose of correcting

errors in the Software) are necessary for the purposes of the use of the Software by the

Customer in accordance with its intended purpose or for the purposes of the use of the

Software in accordance with this licence.

2.16 The Customer shall not modify, alter or in any way interfere with the Software or merge theSoftware with other data, programs or systems. Without prejudice to any other remedy of

Safe Technology, if the Customer (in breach of this Clause 2.16) does modify, alter,

interfere with or merge the Software, no such modification, alteration, interference or

merger however extensive shall derogate from the obligations of and restrictions on the


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Customer under this Software Licence Agreement which shall thenceforth apply to the

Software as so modified, amended, altered, interfered with or merged.

2.17 If any unauthorised use is made of the Software (or any of it) and such use is attributable tothe act or default of the Customer then, without prejudice to Safe Technologys other rights

and remedies, the Customer will immediately be liable to pay Safe Technology an amount

equal to three times the charges which Safe Technology would have levied had Safe

Technology authorised the grant of a licence to or for such unauthorised user at the

beginning of the period of such unauthorised user together with interest at the rate provided

for in Clause 5.6 below from the date of such unauthorised use to the date of payment.

2.18 Safe Technology does not guarantee that where there is an upgrade to the Software, it willwork on the same Designated System.

3. SOFTWARE MAINTENANCE SERVICES3.1 Where Software Maintenance Services are included in this Software Licence Agreement,

that will be indicated in the Quotation. Software Maintenance Services are always included

where the Customer has purchased an annual licence. In consideration of the payment by

the Customer from time to time of the Software Maintenance Charges in accordance with

the provisions of this Clause 3 below, Safe Technology undertakes to provide the Software

Maintenance Services in respect of the Software upon the terms and conditions of this

Software Licence Agreement commencing upon the date of delivery of the Software and

until these Software Maintenance Services are terminated.

3.2 The Software Maintenance Services shall commence for an initial period of one yearfollowing the date of delivery of the Software Licence Key until the next following

Renewal Date. Where the Customer has bought an annual licence to use the Software, the

Software Maintenance Charges are included within the Software Licence Fee.

3.3 Where the Customer has bought a licence to use the Software for twenty five (25) years,then:

3.3.1 The amount of the Software Maintenance Charges for the first year are indicated in theQuotation.

3.3.2 The Software Maintenance Service shall be provided for further periods of one calendaryear from each Renewal Date upon payment of the relevant Software Maintenance

Charges unless the Customer declines to renew these Software Maintenance Services

further to Clause 3.3.3 below or unless these Software Maintenance Service are earlier

terminated.

3.3.3 Safe Technology shall determine the level of the Software Maintenance Charges foreach calendar year and shall inform the Customer of the same. The Customer shall be

entitled to decline to renew these Software Maintenance Services by giving notice to

Safe Technology so to do within thirty (30) days of Safe Technology informing the

Customer of the new Software Maintenance Charge: such notice to take effect on a

Renewal Date.


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3.4 The Software Maintenance Charges do not include the cost of travel, accommodation andsubsistence expenses (including the cost of time spent travelling) incurred in the provision

of the Software Maintenance Services for which Safe Technology may, in its discretion,

require the Customer to pay Additional Charges.

3.5 Safe Technology agrees to provide the following Software Maintenance Service to theCustomer during Working Hours in respect of the Software:

3.5.1 reasonable assistance in the resolution of queries via a telephone call or e-mailoriginated by the Customer;

3.5.2 recommendations relevant to the course of action necessary to recover from a fault, erroror failure emanating from the Software or its use;

3.5.3 upon request by the Customer the use of reasonable endeavours to (a) diagnose failuresin the Software to operate substantially in accordance with manner intended by Safe

Technology as set out in the User Manual and (b) to rectify such failures (whether

remotely or otherwise) by the issue of fixes in respect of the Software;

3.5.4 the creation and making available to the Customer from time to time at SafeTechnologys sole discretion of fixes in respect of the Software;

3.5.5 the creation and making available to the Customer from time to time at SafeTechnologys sole discretion of new releases and new versions of the Software.

Safe Technology shall in its discretion make available fixes, new releases and new versions

of the Software either by making the same available for download from Safe Technologys

web site or the dispatch to the Customer of the same on a CD or other electromagnetic

recording media.

3.6 The Customer shall supply to Safe Technology (in writing if Safe Technology so requests) adetailed description of the fault requiring Software Maintenance Service by virtue of

Clauses 3.5.1, 3.5.2 or 3.5.3 above and the circumstances in which the fault arose forthwith

upon becoming aware of such circumstances.

3.7 The Software Maintenance Services may be performed at one of Safe Technologyspremises or via a telecommunication link.

3.8 The above Software Maintenance Service shall not include the diagnosis and rectificationof a fault resulting from:

3.8.1 the improper use, operation or neglect of either the Software or the Designated System;3.8.2 the improper attachment of any Software Licence Key or other device supplied with the

Software or attempts to use the Software without the same;

3.8.3 the modification or alteration of or interference with the Software or its merger (inwhole or in part) with any other software;

3.8.4 the use of the Software by an individual who has not undergone training with SafeTechnology to the required level or is not otherwise reasonably competent in the use of

the Software;


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3.8.5 the use of the Software in conjunction with hardware or software other than theDesignated System;

3.8.6 the failure by the Customer to implement recommendations in respect of or solutions tofaults previously advised by Safe Technology;

3.8.7 a repair, adjustment, alteration or modification of the Software by a Third Party savewith the prior written authority of Safe Technology; or

3.8.8 the use of the Software for a purpose for which it was not designed.3.9 The above Software Maintenance Service shall not include the diagnosis and rectification

of a fault arising in a version or release of the Software other than:

3.9.1 the then current version supplied by Safe Technology to the Customer; or3.9.2 the most recently replaced version or release which was supplied by Safe Technology to

the Customer provided that the then current version or release has not been released

more than eighteen (18) months before the date of the request for such diagnosis andrectification by Safe Technology.

3.10 The Software Maintenance Charges do not include the cost of the Excepted Services. TheCustomer may at any time request Safe Technology to provide the above maintenance

notwithstanding that the fault results from any of the circumstances described in Clause 3.8

or Clause 3.9 above. Where Safe Technology agrees to such a request, Safe Technology

shall use its reasonable endeavours to provide that maintenance and shall be entitled to

require the Customer to pay Additional Charges for that Maintenance.

3.11 Safe Technology shall be entitled to require the Customer to pay Additional Charges wherethe request for Software Maintenance Service is made by a person who has not successfully

received training in the use of the Software to a level reasonably required by Safe

Technology. Safe Technology shall be entitled to refuse a request for the Software

Maintenance Service which is made by a person who has not successfully received training

in the use of the Software to a level reasonably required by Safe Technology.

3.12 The Customer shall provide all necessary consumables for Safe Technology in the provisionby Safe Technology of the Software Maintenance Service.

3.13 Upon the happening of a Termination Event, Safe Technology may by notice terminatethese Software Maintenance Services forthwith.

3.14 Either Party may by not less than ninety (90) days notice in writing terminate theseSoftware Maintenance Services provided that such notice shall take effect from a Renewal

Date.

3.15 Safe Technology may withdraw the Software Maintenance Service for an element of theSoftware with effect from a Renewal Date.

3.16 The Customer may within thirty (30) days of notification of an increase in the SoftwareMaintenance Charges decline to renew the Software Maintenance Services as provided for

in Clause 3.3.3 above.


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3.17 A termination of these Software Maintenance Services (whether further to Clause 3.13above or otherwise) shall be without prejudice to the continuance of the remainder of this

Software Licence Agreement.

3.18 Where for any reason the Customer has failed to continuously take or pay for the SoftwareMaintenance Services or there has been a termination in the supply of Software

Maintenance Services to the Customer, and the Customer subsequently requests Safe

Technology to reinstate the Software Maintenance Services, then Safe Technology may

accede to such a request from the Customer provided that the Customer pays a lump sum

amount (in addition to all Software Maintenance Charges for the period commencing upon

the reinstatement) as indicated in the following table:

Number of years (or part thereof) for which

the Software Maintenance Services have

not been supplied to the Customer

Additional fee payable

One year No additional fee

Two years A sum equivalent to the then (annual)

Software Maintenance Charge

Three years A sum equivalent to twice the then (annual)

Software Maintenance Charge

Four years A sum equivalent to three times the then

(annual) Software Maintenance Charge

Five years or more A sum equivalent to four times the then

(annual) Software Maintenance Charge

4. OTHER SERVICES4.1 Safe Technology shall provide such other Services (if any) as are indicated in the Quotation

upon payment by the Customer of the charges indicated in the Quotation.

4.2 The Services may take the form of all or any of the following:4.2.1 the provision of a set number of man days of consultancy (whether for the preparation of

further or bespoke software, a software specification or otherwise) as indicated in the

Quotation;

4.2.2 the provision of Training Services as indicated in the Quotation.4.3 The Training Services may be performed either at Safe Technologys premises or at another

location nominated for the purpose by Safe Technology.

4.4 The provision of the Services by or on behalf of Safe Technology shall be subject to theterms and conditions of this Software Licence Agreement.


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4.5 The Parties may by a written memorandum or exchange of e-mails , add further Services.Safe Technology shall provide those further Services upon payment by the Customer of the

further charges indicated in that memorandum or those e-mails.

4.6 Any estimate or indication by Safe Technology as to the number of man days required bySafe Technology to undertake a specific task shall be construed as being an estimate only.

4.7 Where the Parties agree upon a fixed charge for the provision of certain Services thennevertheless Safe Technology shall not be bound by such fixed charge where the Customer

subsequently requires an improvement, substitution or modification to those Services.

4.8 There are seven and a half working hours in a working day.4.9 Unless otherwise expressly stated in writing the charges quoted by Safe Technology for the

Services do not include the cost of travel, accommodation and subsistence expenses

(including the cost of time spent travelling) incurred in the provision of those Services for

which Safe Technology may at Safe Technologys discretion require the Customer to pay

Additional Charges.

4.10 Where the Services include the provision of programmers by Safe Technology in order towrite further or bespoke software then such further or bespoke software shall belong to Safe

Technology and be licensed to the Customer pursuant to the provisions of the Software

Licence set out in Clause 2 above.

5. PAYMENT5.1 The Software Licence Fee payable for the Software shall be as indicated in the Quotation.

Where the Customer has bought an annual licence, Safe Technology shall determine the

level of the Software Licence Fee in order for the Customer to renew the annual licence for

the Software for each subsequent year and shall inform the Customer of the same. The

Customer shall be entitled to decline to renew the annual licence for the Software by giving

notice to Safe Technology so to do within thirty (30) days of Safe Technology informing

the Customer of the new Software Licence Fee: such notice to take effect on a Renewal

Date.

5.2 The Software Maintenance Fee is payable annually in advance. In the case of a twenty fiveyear licence, the amount of the Software Maintenance Fee for the first year is indicated in

the Quotation.

5.3 The Customer shall be invoiced for Additional Charges for the Services monthly in arrearsand where appropriate on a time and materials basis.

5.4 All invoices issued by Safe Technology shall be payable by the Customer within thirty (30)days of the date on which the invoice is issued.

5.5 Safe Technology shall be free to vary all costs and fees payable by the Customer and nototherwise fixed under this Agreement at any time upon giving not less than thirty (30) days

notice in writing to the Customer so to do.


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5.6 Safe Technology reserves the right to charge interest to the Customer on any sums, fees orother charges payable under this Software Licence Agreement which are not paid on the

due date and such interest may be charged (as well after as before a judgment) at the rate of

three per cent (3%) per annum above the base rate of National Westminster Bank plc from

time to time subsisting: such interest to accrue on a daily basis.

5.7 If the Customer fails to pay any monies on the due date or does not comply with anobligation imposed upon the Customer under this Software Licence Agreement then,

without prejudice to any other right or remedy available to Safe Technology, Safe

Technology shall be entitled to:

5.7.1 withhold the supply of any Software Licence Key, software or Services to be provided tothe Customer by or on behalf of Safe Technology;

5.7.2 suspend the performance of any obligation owed by Safe Technology under thisSoftware Licence Agreement; and

5.7.3 require payment in full by the Customer for all further software and Services which SafeTechnology agrees to supply further to this Software Licence Agreement beforesupplying that software or Services.

5.8 All sums quoted under or further to this Software Licence Agreement are exclusive of valueadded tax and any other similar tax which will be added at the rate prevailing as at the date

of invoice.

5.9 The Customer shall not be entitled to make a set-off or counter-claim or claim a lien inrespect of any monies owed by the Customer and shall pay all amounts due to Safe

Technology under or further to this Software Licence Agreement in full without making a

deduction of any kind.

5.10 All monies payable by the Customer pursuant to this Software Licence Agreement shall bepaid in full without deduction of taxes, charges and other duties that may be imposed except

in so far as any such deduction may be credited in full by Safe Technology against the Safe

Technology's own tax liabilities. Where this cannot be done then the Customer shall be

liable to pay such additional amounts such that Safe Technology receives, after tax, the

monies stated as payable by the Customer pursuant to this Software Licence Agreement.

6. SUBSTITUTION AND MODIFICATIONSafe Technology reserves the right, as Safe Technology shall in its discretion determine, to

make an improvement, substitution or modification in the specification of any element or part

of the Software or Services provided that such improvement, substitution or modification does

not substantially worsen the overall performance of the Software and Services.

7. CUSTOMERS OBLIGATIONS7.1 The Customer shall:7.1.1 pay all sums, fees and other charges due under this Software Licence Agreement on the

dates provided for under this Software Licence Agreement; and


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7.1.2 take all precautions to protect the health and safety of Safe Technologys personnelwhilst at the Site or any other location of the Customer.

7.2 The Customer shall promptly provide Safe Technology, on request, with all information andassistance that Safe Technology may reasonably require in the performance of Safe

Technologys obligations pursuant to this Agreement. In the event that the supply of the

Software or Services are delayed by reason of any delay in the provision by the Customer of

any such information or assistance, Safe Technology shall (without prejudice to any other

remedy of Safe Technology) be entitled to increase the price of the Software and Services

to compensate Safe Technology for all additional costs that are reasonably incurred by Safe

Technology and to extend any delivery date.

7.3 The Customer alone shall be responsible for the accuracy and validity of the informationprovided by the Customer.

7.4 The Customer acknowledges that it is relying solely upon its own skill and judgment andnot that of Safe Technology in determining the suitability of the Software and the fitness for

any general or specific purpose of the Software.

8. DOCUMENTATION8.1 Safe Technology shall provide such documentation as Safe Technology in Safe

Technologys reasonable discretion considers necessary for the use of the Software.

8.2 The Customer shall be free to photocopy or otherwise duplicate the documentation providedby Safe Technology and relating to the use of the Software, provided always that such

copies and duplicated copies of the documentation shall:

8.2.1 be made available only for the use by the employees of the Customer and for the internaluse of the Customer; and

8.2.2 carry an identical copyright notice to the copyright notice included by Safe Technologyupon the original documentation provided by Safe Technology.

9. CUSTOMERS PURCHASE ORDER

9.1 Safe Technology shall be entitled to require the Customer to provide a formal purchase

order before the contract set out in this Software Licence Agreement comes into existence

or is renewed pursuant to Clause 5.1 above. The provisions of this Clause 9.1 shall bewithout prejudice to the provisions of Clause 25.1 and any terms and conditions contained

in such purchase order shall nevertheless not form a part of this contract or an such renewal.


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9.2 Safe Technology shall be entitled to require the Customer to provide a formal purchase

order or to pay in full before releasing the relevant Software Licence Key permitting the use

of the Software.

10. GUARANTEE10.1 Safe Technology shall supply the Software and Services at the Site subject to the payment

of the monies due from the Customer and the other terms and conditions of this Software

Licence Agreement.

10.2 Safe Technology warrants to the Customer that it has the right to grant the Customer thelicence and rights hereby granted in the licence of the Software set out in Clause 2 above.

10.3 The Customer shall test the Software within ninety (90) days of delivery of the Software.Where the Software fails to operate substantially in accordance with manner intended by

Safe Technology set out in the User Manual and such failure is notified to Safe Technology

in such ninety (90) day period, Safe Technology will then remedy that failure, provided

always that if Safe Technology is unable to do so Safe Technology may, at its option,

either:

10.3.1 replace the Software; or10.3.2 refund the monies paid for the use of the Software, in which event the Customer shall

return the Software to Safe Technology.

10.4 The Customer acknowledges that it has been offered Software Maintenance Services.

11. GENERAL EXCLUSIONS AND LIMITATIONS OF LIABILITY11.1 To the maximum extent permissible in law, all conditions and warranties which are to be

implied by statute or otherwise by general law into this Software Licence Agreement or

relating to the Software or the Services are hereby excluded.

11.2 Safe Technologys charges to the Customer are determined on the basis of the exclusionsfrom and limitations of liability contained in this Software Licence Agreement. The

Customer expressly agrees that these exclusions and limitations are reasonable because of

(amongst other matters) the possibility that otherwise the amount of damages awardable to

the Customer for a breach by Safe Technology of this Software Licence Agreement may be

disproportionately greater than the price of the Software. Safe Technology is willing to

arrange for additional insurance cover to enable Safe Technology to take on the burden of

additional liability to the Customer provided that the Customer pays Safe Technology a

commensurately higher price for the Software. If the Customer wishes Safe Technology to

obtain a quotation for the supply of the Software based upon such additional liability, the

Customer shall notify Safe Technology accordingly prior to this Software Licence

Agreement being entered into.


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11.3 The following provisions in this Clause 11 set out Safe Technologys entire liability(including any liability for the acts and omissions of its employees, agents or sub-

contractors) to the Customer in respect of:

11.3.1 a breach of Safe Technologys contractual obligations;11.3.2 a tortious act or omission for which Safe Technology is liable;11.3.3 an action arising out of a misrepresentation by or on behalf of Safe Technology,

arising in connection with the performance or contemplated performance of this Software

Licence Agreement.

11.4 The total liability which Safe Technology shall owe to the Customer and in respect of allclaims shall not exceed the sum of five hundred thousand pounds (500,000).

11.5 Safe Technology shall in no circumstances be liable to the Customer for any ConsequentialLoss.

11.6

Safe Technology shall in no circumstances be liable to the Customer for any indirect loss.

11.7 Safe Technology shall in no circumstances be liable for a delay or for any other loss,damage or other cost of whatsoever nature (including without limitation Consequential

Loss) suffered or incurred by the Customer where any estimate or indication as to the

number of man days required by Safe Technology to undertake a specific task given as

provided for in Clause 4.6 above is incorrect.

11.8 Safe Technology shall in no circumstances (whether before or after termination of thisSoftware Licence Agreement) be liable to the Customer for any Loss of Data and the

Customer shall at all times keep adequate back-up copies of the data and programs held or

used by or on behalf of the Customer.

11.9 The Customer acknowledges that the Software has not been designed for use incircumstances where its failure could cause severe Consequential Loss. Where the Software

is to be used in a situation where a reasonable user would not use the Software without first

undertaking a risk analysis assessment of the Software, the associated hardware and

software and the use of the same (including without limitation where the Software is to be

used in the following fields: medical; transport; the control or utilisation of nuclear

products), the Customer shall not use the Software or cause the Software to be used without

first undertaking such a risk analysis assessment.

11.10 The Customer further acknowledges that the Software is a design tool and is not intended toreplace the need to build and test final prototypes but merely to reduce the number of finalprototypes built and tested.

11.11 The Customer shall only be entitled to bring a claim against Safe Technology where theCustomer issues legal proceedings against Safe Technology within the period of twenty

four (24) months commencing on the date upon which the Customer ought reasonably to

have known of its entitlement to bring such a claim.


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11.12 Notwithstanding anything to the contrary herein contained Safe Technologys liability tothe Customer for:

11.12.1 death or personal injury resulting from the negligence of Safe Technology, itsemployees, agents or sub-contractors;

11.12.2 damage suffered by the Customer as a result of a breach by Safe Technology of thecondition as to title or the warranty as to quiet possession implied by section 12 of the

Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (or

any equivalent legislation);

11.12.3 damage for which Safe Technology is liable to the Customer under part I of theConsumer Protection Act 1987; or

11.12.4 fraud,shall not be limited save that nothing in this Clause 11 shall confer a right or remedy upon

the Customer to which the Customer would not otherwise be entitled.

11.13 The exclusions from and limitations of liability set out in this Clause 11 shall be consideredseverably. The validity or unenforceability of any part of this Clause 11 shall not affect the

validity or enforceability of any other part of this Clause 11.

11.14 The provisions of this Clause 11 shall survive any termination of this Software LicenceAgreement.

12. FORCE MAJEUREAny delay in or failure of performance of any obligation by either Party (save an obligation in

respect of the payment of monies) shall not constitute a breach of such obligation but only to

the extent that such a delay or failure is caused by an event which is not within the reasonablecontrol of the Party otherwise in default and which such Party is unable to prevent or to

circumvent by the exercise of reasonable diligence including without limitation an event such

as a war, riot, civil commotion, fire, flood, earthquake, epidemic, inability or delay in obtaining

supplies of adequate or suitable materials, strike, lock-out or other industrial action or trade

dispute (whether or not involving the work force or a part of the work force of the Party

otherwise in default). The Party otherwise in default shall take and continue to take all

reasonable steps to circumvent and mitigate the effect of such event and to reduce any delay in

the performance of such obligation.

13. INTELLECTUAL PROPERTY RIGHT INFRINGEMENT13.1 Safe Technology shall defend an action brought against or claim made against the Customer

by reason of an infringement or alleged infringement of an Intellectual Property Right

owned by Safe Technology by virtue of the Customers use of the Software under this

Software Licence Agreement and shall pay the reasonable costs and damages awarded

against the Customer in such action or claim provided that:

13.1.1 the Customer shall promptly notify Safe Technology in writing of such action or claim;and


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13.1.2 Safe Technology shall have the exclusive conduct of the defence of such action or claimand all negotiations for its settlement or compromise; and

13.1.3 the Customer shall give Safe Technology at the expense of Safe Technology allassistance requested by Safe Technology in the defence of such action or claim.

13.2

Where a court grants an injunction arising out of such an action or claim and that injunctionprevents the Customers use of the Software, Safe Technology shall (or at any other time

after such action commenced or claim has been made, Safe Technology may) at Safe

Technologys option and expense:

13.2.1 procure for the Customer the right to continue using the Software; or13.2.2 replace or modify the offending part of the Software so that the same is no longer an

infringement (or alleged infringement) of the Intellectual Property Right of the Third

Party; or

13.2.3 pay damages to the Customer limited always to the sum of five hundred thousandpounds (500,000).

13.3 Safe Technology shall not be liable to the Customer for an infringement (or allegedinfringement) of an Intellectual Property Right of a Third Party to the extent that such

infringement relates to:

13.3.1 use of the Software in combination with other hardware and software not supplied orapproved by Safe Technology;

13.3.2 information, data or programs furnished by the Customer in the course of the supply andmaintenance of the Software;

13.3.3 actions taken by Safe Technology at the direction of the Customer;13.3.4 alteration of the Software other than by Safe Technology or as authorised by Safe

Technology;

13.3.5 failure of the Customer to use replaced or modified parts of the Software provided bySafe Technology in order to avoid such infringement; or

13.3.6 use of the Software in a manner or for a purpose for which it was not designed; or13.3.7 an Intellectual Property Right in which the Customer or an Associated Company has a

direct or an indirect interest (including without limitation where the Customer or the

Associated Company is a licensee of that Intellectual Property Right).

13.4 Subject to the provisions of Clause 11.12 above this Clause 13 states Safe Technologysentire liability to the Customer arising from an infringement (or alleged infringement) of an

Intellectual Property Right.

13.5 The provisions of this Clause 13 shall survive any termination of this Software LicenceAgreement.


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14. TERMINATION OF THE AGREEMENT14.1 Upon the happening of a Termination Event, Safe Technology may by written notice

forthwith terminate the whole of this Software Licence Agreement. This right shall be

notwithstanding the right of either Party to otherwise terminate this Software Licence

Agreement as provided under this Software Licence Agreement or by operation of law.

14.2 Any termination of this Software Licence Agreement shall be without prejudice to therights and duties of either Party accrued prior to termination.

14.3 The termination of the Software Maintenance provisions set out in Clause 3 of this LicenceAgreement shall be without prejudice to the right of Safe Technology to terminate the

whole of this Software Licence Agreement.

14.4 Upon any termination of this Software Licence Agreement the Customer shall not beentitled to a rebate of any monies paid in advance whether in respect of the Software

Maintenance Service or any other Services.

14.5 Following any termination of this Software Licence Agreement, the Customer shall returnto Safe Technology all copies (whether authorised or unauthorised) of the Software,

associated documentation and manuals and shall cease to use the Software.

14.6 Upon any termination of this Software Licence Agreement, subject only to the provisions ofClause 14.7 below,:

14.6.1 the Customer shall immediately cease to be entitled to use the Software; and14.6.2 the Customer shall forthwith return to Safe Technology all copies (whether authorised or

unauthorised) of the Software, associated documentation and manuals.

14.7

Upon any termination of this Software Licence Agreement, save in circumstances where theCustomer has failed to pay the moneys due under this Software Licence Agreement, Safe

Technology shall permit the Customer, if so requested by the Customer, to retain a Copy of

the Software and the associated documentation and manuals for a period of seven (7) days

following the termination in order to retrieve data and programs of the Customer stored by

the Customer at the date of termination but solely for the purposes of the analysis of data

which the Customer has in the customers possession as at the date of termination.

14.8 The provisions of the following Clauses shall survive any termination of this Agreement:Clauses 2.7, 2.8, 2.15, 2.16, 2.17, 5, 7, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25,

26, 27 and 28.

15. COMMUNICATIONS15.1 Where the Customer is required to contact Safe Technology then it shall contact Safe

Technology at its service centre at 1 The South West Centre, Archer Road, Sheffield, S8

0JR or by telephone on +44 114 255 5919, by fax on +44 114 255 5910 or by e-mail to

[email protected] or using such other contact details as Safe Technology may

from time to time specify in writing to the Customer.


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16. SEVERABILITY16.1 If a provision in this Software Licence Agreement is determined by a Court or tribunal of a

competent jurisdiction to be wholly or partly unenforceable for any reason:

16.1.1 such unenforceability shall not affect the rest of this Software Licence Agreement; and16.1.2 the Parties shall in good faith amend and if necessary novate this Software Licence

Agreement to reflect as near as may be the spirit and intention behind such

unenforceable provision or provisions so that the same comply with the laws of that

jurisdiction.

17. ASSIGNMENT17.1 The Customer shall not assign or transfer this Software Licence Agreement or any of its

rights, benefits or liabilities under this Software Licence Agreement (or purport to do so)

without the previous consent in writing of Safe Technology (such consent not to be

unreasonably withheld or delayed) and which consent will be subject to the payment by the

Customer of Safe Technologys standard administration fee for assignments or transfers

from time to time prevailing.

17.2 Safe Technology may assign this Software Licence Agreement as it sees fit.

18. SUB-CONTRACTINGSafe Technology shall be free to sub-contract any or all of its rights and obligations under this

Software Licence Agreement as it in its discretion sees fit. For the avoidance of doubt, in such

circumstances, Safe Technology shall remain responsible for the performance of its obligations

under this Software Licence Agreement.

19. EXPORT RESTRICTIONSThe export of computer products from the United Kingdom (and their re-export from the

country to which they were originally exported) is subject to the licence regulations of inter

alia the government of the United Kingdom and the government of the United States of

America. The Customer agrees that it will not export or re-export any of the Software or

documentation without first applying for and receiving all necessary licences and permits.

20. CONFIDENTIALITY20.1 Each Party agrees with the other in respect of all information of a confidential nature

disclosed in this Software Licence Agreement or discovered further to the operation of this

Software Licence Agreement (which includes without limitation information as to the

operation of the business of Safe Technology and information relating to the source code

and structure of the Software) (Confidential Information):

20.1.1 to keep the Confidential Information in strict confidence and secrecy;


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20.1.2 not to use the Confidential Information save for complying with its obligations underthis Software Licence Agreement;

20.1.3 not to disclose the same to a Third Party;20.1.4 to restrict the disclosure of the relevant and necessary parts of the Confidential

Information to such of its employees and others who of necessity need the same in the

performance of their duties as envisaged by this Software Licence Agreement and in

such circumstances to ensure that such employees and others are aware of the

confidential nature of the Confidential Information,

provided however that where a part of the Confidential Information is already or becomes

commonly known in the trade (except through a breach of the obligations imposed under

this Software Licence Agreement) then the foregoing obligations of confidentiality in

respect of such part shall not apply or shall cease to apply (as the case may be).

20.2 Notwithstanding the provisions of Clause 20.1 above:20.2.1

the information contained in the User Manual is not confidential information for thepurposes of this Clause 20;

20.2.2 information which has not been marked as confidential by the Customer is notconfidential information for the purposes of this Clause 20; and

20.2.3 Safe Technology shall be free to use the Customer Information in a manner that does notidentify that information as being associated with that Customer save where the

Customer expressly states that Safe Technology may not do so.

20.3 This obligation of confidentiality shall survive any termination of this Software LicenceAgreement.

21. AMENDMENT AND WAIVER21.1 No amendment of this Software Licence Agreement shall be binding unless executed in

writing and signed by an authorised representative of each of the Parties save that where the

Customer requests an improvement, substitution or modification to any Software or

Services, then Safe Technology shall be entitled (but not bound) to act upon such request

and to charge for the same on a time and materials basis. The supply of any such

improvement, substitution or modification shall be subject to the provisions of this Software

Licence Agreement.

21.2 Nevertheless the failure of either Party at any time to enforce a provision of this SoftwareLicence Agreement shall not be deemed a waiver of such provision or of any other

provision of this Software Licence Agreement or of such Partys right thereafter to enforce

that or any provision of this Software Licence Agreement.

22. EMPLOYEES22.1 Without the prior consent in writing of Safe Technology, the Customer shall not during the

continuance of this Software Licence Agreement or during the period of 180 days


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commencing on the date of termination of this Software Licence Agreement solicit, procure

or attempt to procure the employment of a person employed at that time by Safe

Technology.

23. CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999A Third Party who is not a Party to this Software Licence Agreement shall have no right under

the Contract (Rights of Third Parties) Act 1999 to enforce or benefit from any provision of this

Software Licence Agreement but this shall not affect any right or remedy of any Third Party

which exists or is available apart from that Act.

24. NOTICES24.1 Any notice to be given pursuant to this Software Licence Agreement shall be in writing and

may be served and if so served shall be deemed to have been duly served:

24.1.1 if delivered by hand, when left at the proper address for service;24.1.2 if given or made by prepaid first class post, 48 hours after being posted (excluding days

that are not Business Days);

24.1.3 if given or made by prepaid express air mail post, 96 hours after being posted (excludingdays that are not Business Days);

24.1.4 if given or made by e-mail, at the time of error - free transmission; or24.1.5 if given by facsimile transmission at the time of receipt of an error-free transmission

code,

provided that where in the case of delivery by hand or transmission by e-mail or facsimilesuch delivery or transmission occurs either after 4 pm on a Business Day or on a day other

than a Business Day service shall be deemed to occur at 10 am on the next following

Business Day (such times being local time at the address of the recipient).

24.2 Any notice shall be made in writing or by e-mail or facsimile addressed to the recipient inthe case of a company at its registered office or its address stated in this Software Licence

Agreement (or such other address or e-mail or facsimile number as may have been notified

in writing by the recipient Party from time to time) and shall be marked for the attention of

the Managing Director.

25. ENTIRE AGREEMENT AND REPRESENTATIONS25.1 This Software Licence Agreement supersedes all previous written or other documents or

agreements (written or oral) relating to the subject matter of this Software Licence

Agreement including without limitation all documents proffered by the Customer and

relating to the subject matter of this Software Licence Agreement.

25.2 The Parties acknowledge that in entering into this Software Licence Agreement they havenot relied upon any representations other than those reduced to writing in this Software


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Licence Agreement. The provisions of this Clause 25.2 shall not apply to any fraudulent

misrepresentation.

26. ASSOCIATED COMPANIES26.1 Any act or omission of an Associated Company of the Customer which if it had been

committed or omitted by the Customer would have been a breach of this Software Licence

Agreement by the Customer will be deemed to be a breach of this Software Licence

Agreement by the Customer who will be liable to Safe Technology accordingly.

26.2 All rights granted by Safe Technology under this Software Licence Agreement may beexercised by an Associated Company of the Customer at the Site. Whether or not the rights

granted to the Customer under this Software Licence Agreement are exercised by such an

Associated Company, the Customer will procure that all its Associated Companies comply

with all the duties, obligations and restrictions imposed on the Customer by this Software

Licence Agreement and will fully and effectively indemnify Safe Technology from and

against any loss, damage or other cost of whatsoever nature suffered or incurred by SafeTechnology as a result of a failure so to comply.

26.3 This Clause 26 shall not apply where the Customer is a University, sole trader orpartnership.

27. INTERPRETATION27.1 The index and the headings to the Clauses of this Software Licence Agreement shall not

affect the construction of this Software Licence Agreement.

27.2

In this Software Licence Agreement the use of the plural shall include the singular and theuse of the singular shall include the plural.

27.3 In this Software Licence Agreement references to the masculine, feminine or neuter gendersshall include each and every gender.

27.4 In this Software Licence Agreement the reference to a document or communication beingmade or transmitted in writing shall include a reference to it being made or transmitted by

e-mail.

27.5 Where a consent or approval is to be given or a discretion is to be exercised under a term orcondition of this Software Licence Agreement by Safe Technology then Safe Technology

shall be entitled (unless the contrary is expressly indicated) to withhold (or give) suchconsent, approval or discretion at Safe Technologys absolute discretion.

28. LAW AND ARBITRATION28.1 The formation, construction, performance, validity and all aspects whatsoever of this

Software Licence Agreement shall be governed by English Law and the Parties hereby

submit to the non-exclusive jurisdiction of the English courts.


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28.2 All disputes and questions whatsoever which arise either during the subsistence of theagreement contained in this Software Licence Agreement or afterwards between the Parties

and which touch upon this Software Licence Agreement or the construction or application

thereof or as to any other matter in any way relating to this Software Licence Agreement

shall be referred to a single arbitrator in accordance with and subject to the provisions of

the Arbitration Acts 1950-1979 (or any statutory modification or re-enactment thereof for

the time being in force). Either Party may serve notice upon the other Party to agree upon

an arbitrator and in default of such agreement within seven Business Days of the date of

such notice the arbitrator shall be appointed at the request of either Party by the President

for the time being of the Institution of Engineering and Technology. The costs of any such

arbitration shall be paid by one or more Parties as determined by the arbitrator.

28.3 The arbitration proceedings will be conducted in the English language and will be held inLondon, England. The arbitrator shall act as an expert and the decision of the arbitrator

will be final and binding on the Parties.

28.4 Notwithstanding the provisions of Clause 28.2 above, Safe Technology shall have the rightto seek appropriate injunctive relief against the Customer in the English or a foreign courtand provided that such court is satisfied that such proceedings have not been brought

frivolously or vexatiously all aspects of the dispute the subject of the injunction

proceedings shall be dealt with by such court and not by arbitration as provided for in

Clause 28.2 above.

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