KIWINOVA LTD 
PERSONAL LICENCE AND SUPPORT AGREEMENT

NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT” AND/OR BY DOWNLOADING AND/OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU (“LICENSEE”) ACCEPT THE FOLLOWING TERMS FROM KIWINOVA LTD OF 24 AEGEAN APARTMENTS, 19 WESTERN GATEWAY, LONDON E16 1AR (“KIWINOVA”). YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  YOU AGREE THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT CLICK “I ACCEPT” AND DO NOT DOWNLOAD OR USE THE SOFTWARE. 

1.	DEFINITIONS
1.1	“Agreement” means this Licence and Support Agreement.
1.2	“Documentation” means the electronic user information supplied with the Software.
1.3	“Effective Date” means the date on which the Licensee accepts this Agreement.
1.4	“Minimum Requirements” means a minimum technical specification of the PC or laptop on which the Software is used which is required to enable the Software to function, as set out in the Documentation.
1.5	“Software” means the object code form of the personal version of the software product entitled Testdriven.net.

2.	GRANT OF RIGHTS; RESTRICTIONS
2.1	Subject to all the terms and conditions of this Agreement, KiwiNova hereby grants Licensee a perpetual, worldwide, nonexclusive, nontransferable licence to install and use the Software on one PC or laptop for Licensee’s own use only. This licence is in respect of use of the Software by the Licensee only and no subsidiaries or holding company of the Licensee may use the Software.
2.2	Except as expressly permitted in this Agreement, Licensee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form; (iii) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licensee’s right to use the Software;  (iv) remove or modify any copyright, trademark, or other proprietary notices of KiwiNova affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Agreement.  

3	PROPRIETARY RIGHTS
4.1	KiwiNova has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein.  This Agreement conveys a limited licence to use the Software and shall not be construed to convey title to or ownership of the Software to Licensee.  All rights in and to the Software not expressly granted to Licensee are reserved by KiwiNova.
4.2	For the avoidance of doubt, the Software does not include:
	4.2.1	Actipro Software which is provided by http://actiprosoftware.com/ on the terms and conditions set out at: ActiproEULA.html
	4.2.4	CommandBars which is distributed with permission from Lutz Roeder <roeder@aisto.com>

4	TERM AND TERMINATION
4.1	This Agreement shall commence on the Effective Date and continue in effect for consecutive annual periods, unless and until terminated in accordance with clause 4.2, or unless terminated by Mutant on the provision of not less than thirty (30) days notice to the Licensee, such notice to be provided to the Licensee via KiwiNova’s website. 
4.2	If either party breaches this Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, this Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).
4.3	Upon any termination of this Agreement, (a) the rights and licences granted to Licensee herein shall terminate; (b) Licensee shall cease all use of the Software; (c) Licensee shall delete all copies of the Software and Documentation in Licensee’s possession or under its control; and (d) Licensee shall certify in writing to KiwiNova its compliance with the foregoing.  Clauses 1, 2.2, 3, 4.3, 5, 6 and 7 shall survive any termination of this Agreement.

5	REPRESENTATIONS AND WARRANTIES
5.1	LICENSEE ACKNOWLEDGES AND AGREES THAT KIWINOVA HAS PROVIDED NO EXPRESS OR IMPLIED WARRANTIES, ORAL OR WRITTEN, TO LICENSEE REGARDING THE SOFTWARE OR DOCUMENTATION AND THAT THEY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED BY LAW KIWINOVA HEREBY EXCLUDES AND DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE AND DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE.
5.2  	The Licensee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Agreement.
6	LIMITATION OF LIABILITY/INDEMNITY
6.1	SAVE IN RESPECT OF DEATH OR PERSONAL INJURY, FOR WHICH THE LIABILITY OF THE PARTIES SHALL BE UNLIMITED, IN NO EVENT SHALL KIWINOVA BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND GOODWILL, BUSINESS OR BUSINESS BENEFIT, OR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY LICENSEE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO CIRCUMSTANCES SHALL KIWINOVA BE LIABLE FOR ANY FAILURE OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR AT ALL, RESULTING FROM A FAILURE BY THE LICENSEE TO COMPLY WITH THE MINIMUM REQUIREMENTS.  ADDITIONALLY, LICENSEE ACKNOWLEDGES THAT WHILST THE SOFTWARE MAY BE USED IN COMBINATION WITH THIRD PARTY SOFTWARE, KIWINOVA BEARS NO LIABILITY, HOWSOEVER ARISING, FOR ANY LOSS, DAMAGE OR COST THAT ARISES FROM A FAILURE OF THE SOFTWARE TO INTEGRATE WITH LICENSEE OR THIRD PARTY SOFTWARE.
8.3	LICENSEE HEREBY INDEMNIFIES KIWINOVA IN FULL AND ON DEMAND IN RESPECT OF ALL COSTS, DAMAGES AND LIABILITIES ARISING FROM ANY BREACH BY THE LICENSEE OF ANY TERM OF THIS AGREEMENT.
7	GENERAL
7.1	Licensee shall not assign this Agreement, in whole or in part, without the written consent of KiwiNova.
7.2	Licensee consents to the use by KiwiNova of Licensee’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Licensee and KiwiNova.
7.3	This Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.
7.4	Licensee agrees that because of the unique nature of the Software and KiwiNova’s proprietary rights therein, a demonstrated breach of this Agreement by Licensee would irreparably harm KiwiNova and monetary damages would be inadequate compensation.  Therefore, Licensee agrees that KiwiNova shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Agreement.
7.5	If any provision of this Agreement or the Software thereof is declared void, illegal, or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law.  In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
7.6	Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.
7.7	Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
7.8	This Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party.  No purchase order and/or standard terms of purchase provided by Licensee shall supersede this Agreement.
7.9	Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against KiwiNova and such third parties shall not be entitled to enforce any term of this Agreement against KiwiNova..
If you have any questions regarding this Licence and Support Agreement or if you wish to discuss the terms and conditions contained herein please contact KiwiNova Ltd using the contact details at http://www.kiwidude.com or at 24 Aegean Apartments, 19 Western Gateway, London E16 1AR.