Date last amended March 13th, 2018
The definitions and rules of interpretation in this Clause shall apply under these Terms and Conditions.
PENMAN CONSULTING: The group consisting of Penman Consulting Ltd, Station Road, Bridlington UK and its subsidiaries Penman Consulting BVBA, Brussels, Belgium and Active Steward Ltd, UK.
ACTIVE STEWARD™: The software, information and related services known as Active Steward™, provided by Penman Consulting, as described at: https://www.activesteward.com, including as amended from time to time.
INTERNAL REGULATORY COMPLIANCE PURPOSES: Using Active Steward™ for the purposes of managing health, safety, environmental and regulatory compliance issues for chemical products, including supply chain and regulatory communications.
EVALUATION PURPOSES: Using Active Steward™ for the purposes of evaluating and testing its performance. For the avoidance of doubt, Evaluation Purposes specifically exclude any and all Commercial Purposes.
FEES: Has the meaning specified under the Licence Agreement.
INTELLECTUAL PROPERTY: All patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
LICENCE AGREEMENT: The Licence Agreement entered into between PENMAN CONSULTING and LICENSEE.
LICENCE PERIOD: Has the meaning specified under the Licence Agreement.
LICENSEE: The person (natural person or business) who has requested a trial of Active Steward™ or entered into a License Agreement for the use of Active Steward™ and accepts the responsibility for ensuring that all usage complies with the terms of the Licence Agreement.
MAINTENANCE RELEASE: Release of Active Steward™ that corrects faults, adds minor functionality or otherwise amends or upgrades Active Steward™, but which does not constitute a New Version.
NEW VERSION: Any new version of Active Steward™ which from time to time is publicly marketed and offered for purchase by Penman Consulting in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product or increased offering.
SERVICES: The services provided under the Services Agreement.
SERVICES AGREEMENT: The Services Agreement executed between PENMAN CONSULTING and LICENSEE.
TRIAL PERIOD: The period having the meaning specified under the Licence Agreement.
USER: The user of Active Steward™; being the LICENSEE, or a representative, employee or other agent of the LICENSEE.
Clause, Schedule and Paragraph headings shall not affect the interpretation of these Terms and Conditions.
In the case of a trial license, Penman Consulting hereby grants to Licensee and Licensee accepts from Penman Consulting, for the duration of the Trial Period only, a non-exclusive, non-transferable, non-sub-licensable, royalty-free licence to use Active Steward™ solely for Evaluation Purposes in accordance with the provisions of these Terms and Conditions.
Following the expiry of any Trial Period, and subject to the payment of all applicable Fees in accordance with the provisions of the Licence Agreement, Penman Consulting hereby grants to Licensee and Licensee accepts from Penman Consulting, for the duration of the Licence Period only, a non-exclusive, non-transferable, non-sub-licensable, royalty-bearing licence to use Active Steward™ solely for Internal Regulatory Compliance Purposes in accordance with the provisions of these Terms and Conditions.
The User agrees to uphold and be bound by these Terms and Conditions and all terms which apply to the Licensee under the Licence Agreement.
For the purposes of the licence rights granted in Clause 2, Licensee and User shall at all times ensure that:
Active Steward™ is only used in object code form;
Active Steward™ shall only be used under the direct supervision and control of Licensee; and
Active Steward™ is only used by Licensee's authorised Users as set out in Clause 1; and
Active Steward™ is not used for the benefit of any person other than Licensee.
Licensee and User shall not, and shall not encourage or permit any third party to:
use, or attempt to use, Active Steward™ in source code form;
copy, adapt, vary, modify, decompile, disassemble, amend or otherwise reverse-engineer any part of Active Steward™ or any associated Services;
attempt to access or use portions of Active Steward™ for which Licensee has not acquired a license; or
except as specifically authorized herein, distribute or transfer Active Steward™.
Licensee and User also agree not to remove or destroy any proprietary markings or notices or any encrypted license keys or similar security devices provided for use with Active Steward™.
During any Trial Period, all output generated from Active Steward™ including but not limited to custom input files, images (including screenshots and reports), shall not be used for commercial or research purposes, publications, or presentations without the express written consent of Penman Consulting; and
at all times during and after any Trial Period or Licence Period all files provided by Penman Consulting, including but not limited to custom input files, images (including screenshots and reports), and all output generated from these files, shall remain the property of Penman Consulting and shall not be used for commercial or research purposes, publications, or presentations without the express written consent of Penman Consulting.
During a Trial Period any use of Active Steward™ for a commercial purpose or to produce outputs having commercial value, including any project or output of a type performed in the normal course of a business or practice, is prohibited.
Licensee and User shall not use Active Steward™ for the purpose of developing products which are substantially similar to Active Steward™ in purpose or nature, or which otherwise compete with Active Steward™. In no event shall Licensee or User make all or any part of Active Steward™ available to any part of a data services operation or application services provider or any third party.
Licensee and User understand and acknowledge that it is granted only those rights set out in these Terms and Conditions and no other rights.
Penman Consulting acknowledges and agrees with the terms of the GNU and other open-source licences (or similar requirements) of the technology stack and development tools in its default state of Active Steward™. The location of the current listing is set out in Appendix 1.
Licensee and User acknowledge and agree that these Terms and Conditions do not grant Licensee or User any title or rights of ownership in Active Steward™ or any right to use, copy, transfer or disclose all or any portion of Active Steward™ except as expressly provided in these Terms and Conditions.
All right, title, and interest in any Intellectual Property subsisting in any part of Active Steward™ (including any know-how developed by Penman Consulting in the course of providing the Services, and any enhancements or modifications made to Active Steward™) shall at all times remain the exclusive property of Penman Consulting. To the extent that any Intellectual Property subsisting in any part of Active Steward™ vests in Licensee or User for any reason, Licensee and User hereby assign and agree to assign all such Intellectual Property to Penman Consulting immediately upon becoming aware of such Intellectual Property. To the extent that any moral rights in any part of Active Steward™ vest in Licensee or User for any reason, Licensee and User hereby agree to waive all such moral rights immediately upon becoming aware of such moral rights.
To the extent that it is necessary for Licensee or User to perform any further action or execute any further document in order to give full force and effect to Clause 4.2, Licensee and User hereby agree that it shall do so upon written request from Penman Consulting, and at Penman Consulting's cost.
Licensee and User acknowledge and agree that Active Steward™ is licensed, not sold, to Licensee, in accordance with the provisions of these Terms and Conditions.
Licensee and User shall not, and shall not permit or encourage any third party to, in any way infringe or undermine any Intellectual Property subsisting in any part of Active Steward™. In particular, Licensee and User agree that it shall not, and shall not permit or encourage any third party to, oppose any attempt by Penman Consulting to apply to register, establish, and exploit any Intellectual Property subsisting in any part of Active Steward™.
During the performance of any Licence Agreement or Trial Period and for a period of ten (10) years from the termination of any Licence Agreement or Trial Period, Licensee and User shall
keep confidential and utilize its best efforts to prevent unauthorized duplication or use of Active Steward™;
treat confidential information relating to Active Steward™ with the same degree of care as it treats like information of its own which it does not want to be publicly disclosed or the subject of unauthorized access or use; and
not make or permit to be made any more copies of Active Steward™ outputs than are reasonably necessary for Licensee's internal use of Active Steward™ in accordance with the provisions of the Licence Agreement.
Active Steward™ is provided as is, without any express or implied warranty as to suitability for any particular purpose. In particular:
Penman Consulting does not warrant that the use of Active Steward™ will be uninterrupted or error-free;
Penman Consulting offers no warranties regarding the availability or timeliness of any Maintenance Releases or New Versions of Active Steward™; and
Penman Consulting does not warrant that Active Steward™ does not and will never infringe the Intellectual Property of any third party.
Licensee accepts responsibility for the selection of Active Steward™ to achieve its intended purposes and acknowledges that Active Steward™ has not been developed to meet the individual requirements of Licensee.
Licensee and User agree that, in agreeing to these Terms and Conditions, it did not rely on any representations (whether written or oral) of any kind, from any person.
All conditions, warranties or other terms which might have effect between the parties or which might be implied or incorporated into these Terms and Conditions, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
Licensee and User expressly acknowledge that:
Penman Consulting shall not be liable for loss of profit, loss of anticipated savings, loss of business opportunity, loss of goodwill, loss or corruption of data or other financial loss which may be caused, directly or indirectly, by the use of Active Steward™ for any purpose, whether or not in accordance with the provisions of these Terms and Conditions.
Penman Consulting shall have no liability with respect to any loss or damage related to or arising from:
any failure of Active Steward™ to perform in accordance with the provisions of these Terms and Conditions or any other description of Active Steward™ that Penman Consulting may otherwise make available from time to time; or
any use or application of Active Steward™ or the results or decisions made by users of Active Steward™.
The total of Penman Consulting's liabilities to Licensee for damages, if any, shall not exceed the Fees actually paid by Licensee under the Licence Agreement during the twelve (12) months preceding the assertion of Licensee's claim.
No action, regardless of form, arising out of any transaction under these Terms and Conditions may be brought by Licensee more than one year after Licensee has, or by the exercise of reasonable diligence should have had, knowledge of the occurrence which gives rise to such action.
Licensee and User acknowledge and agree that they are responsible for ensuring personal data held in Active Steward™ under their control is held in accordance with all applicable data protection regulations, including but not limited to the REGULATION (EU) 2016/679 ("GDPR") as locally enacted.
Penman Consulting agrees to hold all personal data under its control, including personal data held under its control in Active Steward™, in accordance with the statement at https://www.penmanconsulting.com/GDPR, including as amended from time to time.
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