License Agreement

IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE DOWNLOADING ANY SOFTWARE:

This licence agreement (Licence) is a legal agreement between you (Licensee or you) and 360FUSION LTD of Boho One, Bridge Street West, Middlesbrough, TS2 1AE (Licensor or we) for the Fusionplayer and FusionGUI software products (Software), which includes computer software, the data supplied with it, and online documentation (Documentation).

THIS SOFTWARE REQUIRES A COMPUTER WITH A MINIMUM OF 512 MB OF MEMORY AND THE MICROSOFT WINDOWS XP SERVICE PACK 3 OR WINDOWS VISTA SERVICE PACK 1 OPERATING SYSTEMS.

BY PROCEEDING TO DOWNLOAD ANY SOFTWARE FROM THIS WEBSITE YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE DOWNLOADING OR ORDERING PROCESS NOW. IN THIS CASE THE DOWNLOADING OR ORDERING PROCESS WILL TERMINATE OR YOU MAY NOT DOWNLOAD OR ORDER ANY SOFTWARE FROM THIS WEBSITE.

1. Grant and scope of licence

1.1. In consideration of the payment by you of the agreed licence fee (in the case of the full licence) and you agreeing to abide by the terms of this Licence, the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence.

1.2. For the purposes of this Licence, "use" shall mean:

1.2.1. a free trial of the Software only for the purposes of demonstration and testing prior to purchasing a full licence of the Software in accordance with clause 1.2.2 below. The Licensee is not permitted to use the trial Software licensed under this clause 1.2.1 for any commercial purpose; or,

1.2.2. a full licence to use the Software in consideration of the payment of the licence fee payable for the Fusionplayer or FusionGUI Software as shall be notified by the Licensor from time to time which:

1.2.2.1. in relation to the Fusionplayer Software shall mean the ability to:

1.2.2.1.1. manually edit the XML file in the Software and thereby create interactive virtual tours;

1.2.2.1.2. run the interactive virtual tours created above;

1.2.2.1.3. book up to an agreed number of URLs hosted by the Licensor, and upload into the same the Licensee's interactive virtual tours created under clause 1.2.2.1.1 to enable the Licensee to operate their interactive virtual tours; and,

1.2.2.2. in relation to the FusionGUI Software the ability to build Fusionplayer interactive virtual tours within a familiar graphical user interface and run the interactive virtual tours which are thereby created.

1.3. In connection with the above use of the Software you may:

1.3.1. download, install and use the Software for your internal business purposes only, either (as agreed between the parties):

1.3.1.1. on one CPU if the Licence is a single-user licence or the Software is for single use; or

1.3.1.2. if the Licence is a multi-user or network licence, for the number of concurrent users agreed between you and us;

1.3.2. transfer the Software from one computer to another provided it is used on only one computer at any one time;

1.3.3. receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by the Licensor from time to time.

2. Licensee's undertakings

2.1. Except as expressly set out in this Licence or as permitted by any local law, you undertake:

2.1.1. not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;

2.1.2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;

2.1.3. not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;

2.1.4. not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

2.1.4.1. is used only for the purpose of achieving inter-operability of the Software with another software program;

2.1.4.2. is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and

2.1.4.3. is not used to create any software which is substantially similar to the Software;

2.1.5. to keep the licence key for the Software supplied by the Licensor secure and confidential at all times and not to copy, share, distribute or in any way make it public;

2.1.6. to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;

2.1.7. to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this Licence immediately on receipt of such version or release;

2.1.8. to include the copyright notice of the Licensor on all entire and partial copies of the Software in any form;

2.1.9. not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than your employees without prior written consent from the Licensor;

2.1.10. not to use the Software via any communications network or by means of remote access;

2.1.11. not to use any third party software to generate XML for the Fusionplayer software.

2.2. You must permit the Licensor and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.

2.3. When using the free trial of the Software pursuant to clause 1.2.1 above, or any other beta test of the Software, you shall promptly inform the Licensor of any errors, bugs, faults and problems with the Software or the Documentation which you discover in order that the Licensor may take such action to rectify or correct any error, bug, fault or other problem discovered as it shall consider appropriate.

3. Intellectual property rights

3.1. You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to the Licensor, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.

3.2. You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.

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

4. Warranty

4.1. Once you have purchased a licence to use the Software pursuant to clause 1.2.2 the Licensor warrants that:

4.1.1. during the period of 90 days after the date of installation (Warranty Period), the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and the Documentation correctly describes the operation of the Software in all material respects;

4.1.2. it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice.

4.2. You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

4.3. You acknowledge that for technical reasons the Licensor cannot warrant that any URL's that are allocated under clause 1.2.2.1.3 and any third party software systems, such as You Tube, that the Software is designed to operate with, will always be available for use in connection with the Software or will remain linked to or compatible with the Software.

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

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

4.6. The Licensor's obligation under clause 4.5 is subject to compliance by you with the terms of clause 2.1.7

5. Licensor's liability

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

5.2. Subject to clause 5.1, the Licensor's liability for losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude, even if such losses result from the Licensor's deliberate personal repudiatory breach of this agreement:

5.2.1. loss of income;

5.2.2. loss of business profits or contracts;

5.2.3. business interruption;

5.2.4. loss of the use of money or anticipated savings;

5.2.5. loss of information;

5.2.6. loss of opportunity, goodwill or reputation;

5.2.7. loss of, damage to or corruption of data; or

5.2.8. any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;

provided that this clause 5.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of clause 4 or any other claims for direct financial loss that are not excluded by any of categories 5.2.1 to 5.2.8 inclusive of this clause 5.2.

5.3. Subject to clause 5.1 and clause 5.2, the Licensor's maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to the sum of one hundred thousand pounds (£100,000).

5.4. Subject to clause 5.1, clause 5.2 and clause 5.3, the Licensor's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK .

5.5. This Licence sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

6. Termination

6.1. The Licensor may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so; or

6.2. a petition for a bankruptcy order to be made against you has been presented to the court; or

6.3. the Licensee (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986).

6.4. Upon termination for any reason:

6.4.1. all rights granted to you under this Licence shall cease;

6.4.2. you must cease all activities authorised by this Licence;

6.4.3. you must immediately pay to the Licensor any sums due to the Licensor under this Licence; and

6.4.4. you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.

7. Transfer of rights and obligations

7.1. This Licence is binding on you and us and on our respective successors and assigns.

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

7.3. The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.

8. Notices

All notices given by you to the Licensor must be given to 360FUSION Ltd at Boho One, Bridge Street West, Middlesbrough, TS2 1AE or support@vtfusion.com. The Licensor may give notice to you at either the e-mail or postal address you provided to it when purchasing the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

9. Events outside the Licensor's control

9.1. The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Licence that is caused by an event outside his reasonable control (Force Majeure Event).

9.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

9.2.1. strikes, lock-outs or other industrial action;

9.2.2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

9.2.3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;

9.2.4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

9.2.5. impossibility of the use of public or private telecommunications networks;

9.2.6. the acts, decrees, legislation, regulations or restrictions of any government.

9.3. The Licensor's performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and he will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.

10. Waiver

10.1. If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

10.2. A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.

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

11. Severability

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

12. Entire agreement

12.1. This Licence and any document expressly referred to in it constitute the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of the Software and Documentation.

12.2. We each acknowledge that, in entering into this Licence (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Licence or not) other than as expressly set out in this Licence or those documents.

12.3. Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in this Licence.

12.4. Nothing in this clause shall limit or exclude any liability for fraud.

13. Law and jurisdiction

This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.