Terms and conditions of licence of software 

1.             Interpretation

1.1                In these Conditions the following definitions apply:

"Conditions": these terms and conditions as amended from time to time in accordance with clause 11.8;

"Customer": the company or other legal entity that owns or manages the Generators (the performance of which is monitored by the Software) and to whom DSE grants a licence to use the Software in accordance with these Conditions;

"DSE": Deep Sea Electronics plc a company registered in England and Wales with company number 01319649 and whose registered office is at Highfield House, Hunmanby Industrial Estate, Hunmanby, YO14 0PH;

"DSE Group": means DSE, its subsidiaries, its holding companies and any subsidiary of its holding company (such terms having the meaning ascribed in section 1159 of the Companies Act 2006 (as amended));

"DSEWebNet": the database used for storing a Generator's performance information;

"Generator": device(s) that create electrical energy from mechanical energy;

"Intellectual Property Rights": all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

"Products":  DSE communications products collectively called "Webnet Gateway" that enable access to the DSEWebNet             

"Raw Data": basic generator performance information transmitted from the WebNet Gateway;

"Sanctioned Territory": such territories as set out in the US Lists, as detailed in clause 5.3(c);

"Software": the computer program enabling the Customer to extract on-line (but not hard copy) Raw Data in respect of the Generator;

1.2                In these Conditions the following rules apply:

(a)            A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);

(b)            A reference to a party includes its successors or permitted assigns;

(c)            A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

2.                   Acceptance of these Conditions

2.1                In order to download and/or use the Software the Customer must first accept these Conditions by clicking the relevant box. The Customer must not accept these Conditions if it is not lawfully entitled to use the Software.

2.2                DSE is entitled to make any changes to these Conditions from time to time and will publish notification of such changes on the website www.deepseaplc.com. Changes will be effective when published. The Customer should review these Conditions on a regular basis. The Customer hereby acknowledges and agrees that its acceptance of these Conditions constitute its acceptance to any changes made by DSE to the Conditions.

2.3                These Conditions constitute the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of DSE which is not set out in these Conditions.

2.4                These Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or other dealing.

3.                   Licence

3.1                In consideration of the Customer performing its obligations under and complying with these Conditions DSE grants to the Customer a limited, non-exclusive, non-assignable, and free of charge licence to download, install and use the Software on a personal computer, mobile phone or other device. The Customer hereby warrants that it shall not:

(a)            sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights in the Software to any third party;

(b)            undertake, cause, permit or authorise the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Software or any part or features thereof (except to the extent permitted by law);

(c)            remove, obscure or alter any copyright notices or other proprietary notices included in the Software;

(d)            use the Software or cause the Software (or any part of it) to be used within or to provide commercial products or services to third parties. The foregoing shall not preclude the Customer from using the Software for its own business.

3.2                In the event the Software is pre-loaded on, embedded in, combined, distributed or used or downloaded onto third party products, hardware, software applications, programs or devices (together "Third Party Technology") the Customer acknowledges and agrees that:

(a)            it may be required to enter into a separate licence agreement for the use of such Third Party Technology with the owner or licensor of the Third Party Technology;

(b)            some functionality in the Software may not be accessible through the Third-Party Technology; and

(c)            DSE cannot guarantee that the Software shall always be available on or in connection with such Third-Party Technology.

3.3                The Software and DSEWebNet may include third party code. DSE does not own such third party code and the third party code will only be licensed to the Customer where possible by  DSE. DSE shall in its sole discretion forward any notices for the third party code to the Customer.

4.                   Use of the Software

4.1                In order to use the Software the Customer must have a connection to the Internet. The Customer acknowledges and agrees that it is solely responsible for ensuring that it has all the equipment necessary to access the Internet.

4.2                The Software may use the processing capabilities, memory and band-with of any computer or other device used by the Customer in order to facilitate communication with the DSEWebNet. In the event the Customer's access to the Internet is dependent on the use of a processor and band-with controlled or owned by a third party the Customer acknowledges and agrees that the licence granted pursuant to these Conditions is conditional on the Customer obtaining consent from the relevant third party for such use. By accepting these Conditions the Customer warrants that it has obtained such consent.

4.3                DSE may (but shall not be obliged to) make updates to the Software, as and when necessary, in its sole opinion including to maintain software compatibility, provide security updates or bug fixes or to offer new features, functionality or versions. The Customer acknowledges and agrees that it shall be required to install any updates communicated by DSE in order to retain the licence to use the Software. In the event the Customer fails to install any updates to the Software DSE reserves the right not to continue to support the old version of the Software. 

4.4                Notwithstanding the provisions of clause 4.3, as and when necessary DSE may carry out maintenance works on the Software, any Products and/or the infrastructure of DSEWebNet. The Customer acknowledges that such maintenance work may require its use of the Software, Products and/or DSEWebNet to be temporarily suspended or limited. Where possible DSE shall notify the Customer of the time and date of any suspension or limitation of use. DSE shall not be liable to the Customer for any loss of profit, loss of goodwill, loss of reputation, loss of data, loss of anticipated savings (even when advised of the same) or any indirect or consequential loss incurred by the Customer as a result of any such suspension or limitation of use

5.                   The Customer's Obligations

5.1                The Customer shall be obliged to appoint designated people who it reasonably believes are capable and are permitted to use the Software (the "Authorised Users"). The Authorised Users shall be the only persons in the Customer who will create a user account for and have access to the Software.

5.2                The Customer shall (and shall procure that the Authorised Users shall):

(a)            access and use the Software and DSEWebNet only for the purposes as set out in these Conditions and for no other purpose whatsoever;

(b)            comply with any security, access and/or usage policies in respect of the DSEWebNet and Software and comply with any instructions given by DSE;

(c)            not disclose to any person other than the Authorised Users any user name, password or other account details. All information relating to the DSEWebNet and the Software is confidential and the Customer shall ensure that each Authorised User complies with this clause and shall ensure that no user name, password or other account details are made available to any other employee or third party whatsoever.

5.3                The Customer warrants and undertakes that:

(a)            it is not trading in a Sanctioned Territory;

(b)            it will not download or otherwise send the Raw Data or any interpretations of the Raw Data directly or indirectly to any Sanctioned Territory;

(c)            it is not listed on the United States Department of Treasury list of Specifically Designated Nationals, Specifically Designated Terrorists, Specifically Designated Narcotic traffickers or on the United States Department of Commerce Table of Denial Orders;

(d)            it will not download or otherwise send the Raw Data or any interpretations of the Raw Data directly or indirectly to any persons included in the US Lists;

(e)            it will not use the Raw Data or allow the Raw Data to be used for the development, design, manufacture or production of any weapons including nuclear, chemical, biological or weapons of mass destruction;

(f)             it will not knowingly use, interfere with or damage any data which it does not own.

6.                   Intellectual Property Rights

6.1                The Customer acknowledges that all Intellectual Property Rights in the Software, and DSEWebNet belong and shall belong to DSE and the Customer shall have no rights in the Software and/or DSEWebNet other than the right to use them in the accordance with the terms of these Conditions.

6.2                In the event any third party alleges that the Software and the DSEWebNet infringes the UK Intellectual Property Rights (a "Claim") DSE may at its sole option and expense:

(a)            procure for the Customer the right to continue using the Software and the DSEWebNet in accordance with these Conditions;

(b)            modify the Software and the DSEWebNet so that it ceases to be non-infringing;

(c)            replace the Software with non-infringing software; or

(d)            terminate these Conditions immediately by notice to the Customer.

6.3                Notwithstanding any other provision in these Conditions this clause 6 shall not apply to the extent that any claim or action referred to in this clause arises directly or indirectly through the possession, use, development or modification of any third party source codes.

6.4                This clause 6 constitutes the Customer's exclusive remedy and DSE's only liability in respect of Claims, and for the avoidance of doubt is a breach of clause 9.

7.                   Termination

7.1                The Customer may terminate its relationship with DSE at any time, without liability, by requesting closure of its user account(s), and ceasing to use the Software and the DSEWebNet.

7.2                DSE may terminate its relationship with the Customer, or may terminate or suspend the Customer's use of the Software, user account(s) or DSEWebNet at any time without liability:

(a)            if the Customer is in breach of these Conditions;

(b)            DSE reasonably suspects that the Customer is using its Products, Software and/or DSEWebNet  to break the law or infringe third party rights;

(c)            DSE reasonably suspects that the Customer is using its Products, Software and/or DSEWebNet fraudulently or that the user account is being used by a third party fraudulently;

(d)            On giving not less than thirty (30) days notice if DSE decides to cease offering the Software to users in the Customer's jurisdiction generally.

7.3                Either party may terminate these Conditions without liability to the other party by giving notice at any time if: (a) a party  makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) the party becomes bankrupt or (being a company) the party become subject to an administration order or go into liquidation (either voluntary or compulsory) (other than for the purpose of amalgamation or reconstruction); (b) an encumbrancer takes possession, or a receiver is appointed, over any of either party's property or assets; (c) either party ceases, or threatens to cease, to carry on business; (d) either party undergoes a change of control of its business; or (e) a party reasonably apprehend that any of the events mentioned above is about to occur and it notifies the other party in writing.

8.                   Consequence of Termination

In the event of termination in accordance with these Conditions:

8.1                all licenses and rights to use the Software, Products and/or DSEWebNet shall immediately terminate;

8.2                the Customer shall immediately cease to use and all use of the Software, Products and/or DSEWebNet;

8.3                the Customer shall immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in its possession or under its control.

9.                   Warranties and Liabilities

9.1                The Customer acknowledges that DSE makes no warranty, claim or representation in relation to the Software, Products and DSEWebNet including without limitation as regards the condition or quality, performance, non-infringement, merchantability, fitness for use for a particular purpose, or that the Software, Products and DSEWebNet will always be available, accessible, uninterrupted, timely, secure, accurate, complete or error free.

9.2                Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted within the law  by DSE.

9.3                Except in respect of death or personal injury caused by DSE's negligence or fraudulent misrepresentation DSE  shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Conditions, for any loss whatsoever including direct loss, consequential loss or damage (whether for loss of profit (whether actual or anticipated), loss of business, income, opportunity, reputation (whether direct or indirect) or otherwise, damage to or corruption of data (whether direct or indirect) costs, expenses or other claims or consequential compensation whatsoever (and whether caused by the negligence of DSE, its employees or agents or otherwise) which arises out of or in connection with the use by the Customer of the Software, the DSEWebNet or the Products. In the event the Customer is dissatisfied with the Software, Products and/or DSEWebNet, the Customer acknowledges and agrees that its only remedy is to un-install the Software and immediately cease its use.

9.4                DSE shall not be liable to the Customer or be deemed to be in breach of these Conditions by reason of any delay in performing, or any failure to perform, any of DSE's  obligations in relation to the Software, the Products and/or the DSEWebNet, if the delay or failure was due to any cause beyond DSE's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond DSE's  reasonable control: act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of DSE or of a third party); power failure or breakdown in machinery, difficulties in obtaining raw materials, parts or machinery.

9.5                The Customer shall indemnify and keep DSE indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including legal expenses) and other professional adviser's fees to the extent that the same result directly or indirectly from the following:

(a)            the Customer's use of the Software, Products and DSEWebNet

(b)            Any breach by the Customer of these Conditions, or any applicable law, rule or regulation;

(c)            Any infringement or violation by the Customer of the rights of any third parties (including any Intellectual Property Rights).

9.6                In the event the performance of the Software, the Products and/or DSEWebNet is affected in any way by any act or omission of the Customer then the following shall apply:

(a)            DSE shall be entitled (without prejudice to any other right or remedy) to suspend performance of the Software until the Customer Fault is remedied to DSE's reasonable satisfaction;

(b)            DSE shall not be liable for any costs or losses (direct or indirect) sustained or incurred by the Customer;

(c)            The provisions of clause 9.4 shall apply.

10.                Confidentiality

10.1            Subject to clause 10.2, a party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors and any other confidential information concerning the Disclosing Party's business or its products or services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of complying with these Conditions and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 10 shall survive termination of these Conditions.

10.2            For the purposes of these Conditions and this clause 10 Raw Data shall not be considered as confidential.

10.3            By proceeding to use the Software, Products and DSEWebNet the Customer consents that DSE may process any personal data (including sensitive personal data) that DSE collects from the Customer in accordance with DSE's Privacy Policy. DSE shall retain any personal data for a minimum period of one week.

11.                General

11.1            These Conditions are personal to the Customer and the Customer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under these Conditions.

11.2            DSE may perform any of its obligations or exercise any of its hereunder through any member of the DSE Group.

11.3            Any notice required or permitted to be given by either party to the other under these terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

11.4            No waiver by DSE of any breach of the terms by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.5            If any provision of these terms is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and the remainder of the term in question shall not be affected.

11.6            Nothing in these terms is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

11.7            Members of the DSE Group may enforce their rights under clause 11.2  but any other  person who is not a party to these terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (but this shall not affect the rights or remedies of a third party that exist or are available apart from that Act).

11.8            Except as set out in these terms, any variation, including the introduction of any additional terms, shall only be binding when agreed in writing and signed by DSE.

11.9            These terms shall be governed by the laws of England and the Customer submits to the exclusive jurisdiction of the English Courts.