Malvern Instruments Ltd - Software Licence Agreement

1. General. The software, documentation and any fonts accompanying this Licence whether on disk, in read only memory, on any other media or in any other form (collectively the "Malvern Software") are licensed, not sold, to you by Malvern Instruments Ltd. ("Malvern") for use only under the terms of this Licence, and Malvern reserves all rights not expressly granted to you. The rights granted herein are limited to Malvern’s and its licensors' intellectual property rights in the Malvern Software and do not include any other patents or intellectual property rights. You own the media on which the Malvern Software is recorded but Malvern and/or Malvern's licensor(s) retain ownership of the Malvern Software itself. The rights granted under the terms of this Licence include any software upgrades that replace and/or supplement the original Malvern Software product, unless any such upgrade contains a separate licence.

2. Permitted Licence Uses and Restrictions. This Licence allows you to install and use one copy of the instrument controlling Malvern Software on a single computer. This Licence allows the Malvern Software to exist on more than one computer at a time, and you may make the Malvern Software available over a network where it can be used by multiple computers at the same time, solely for the purposes of off-line data analysis. You may make a copy of the Malvern Software in machine-readable form for backup purposes only; provided that the backup copy includes all copyright or other proprietary notices contained on the original. Except as and only to the extent expressly permitted in this Licence or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Malvern Software or any part thereof. THE Malvern SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE Malvern SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

3. Transfer. You may not rent, lease, lend or sublicense the Malvern Software. You may, however, make a one-time permanent transfer of all of your licence rights to the Malvern Software to another party, provided that: (a) the transfer includes all of the Malvern Software, including all its component parts, original media, printed materials and this Licence; (b) you do not retain any copies of the Malvern Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Malvern Software reads and agrees to accept the terms and conditions of this Licence. NFR (Not for Resale) Copies: Notwithstanding other sections of this Licence, Malvern Software labelled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.

4. Termination. This Licence is effective until terminated. Your rights under this Licence will terminate automatically without notice from Malvern if you fail to comply with any term(s) of this Licence. Upon the termination of this Licence, you shall cease all use of the Malvern Software and destroy all copies, full or partial, of the Malvern Software.

5. Limited Warranty on Media. Malvern warrants the media on which the Malvern Software is recorded and delivered by Malvern to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at Malvern’s option, a refund of the purchase price of the product containing the Malvern Software or replacement of the Malvern Software which is returned to Malvern or a Malvern authorised representative with a copy of the receipt. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

6. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE Malvern SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Malvern SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND Malvern AND Malvern'S LICENSORS (COLLECTIVELY REFERRED TO AS "Malvern" FOR THE PURPOSES OF SECTIONS 6 AND 7) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE Malvern SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Malvern DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE Malvern SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE Malvern SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE Malvern SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE Malvern SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Malvern OR A Malvern AUTHORISED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE Malvern SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

7. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL Malvern BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE Malvern SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF Malvern HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Malvern's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty Euros (€50.00). The foregoing limitations will apply even if the above stated remedy fails to fulfil its essential purpose.

8. Export Law Assurances. You may not use or otherwise export or re-export the Malvern Software except as authorised by United Kingdom law and the laws of the jurisdiction in which the Malvern Software was obtained. In particular, but without limitation, the Malvern Software may not be exported or re-exported (a) into (or to a national or resident of) any U.K. embargoed countries or (b) to anyone on the U.K. DTI Denied Person’s List or Entity List. By using the Malvern Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

9. Government End Users. The Malvern Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licenced to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

10. Controlling Law and Severability. This Licence will be governed by and construed in accordance with the laws of the United Kingdom. This Licence shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Licence shall continue in full force and effect.

11. Complete Agreement; Governing Language. This Licence constitutes the entire agreement between the parties with respect to the use of the Malvern Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Licence will be binding unless in writing and signed by Malvern. Any translation of this Licence is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Licence shall govern.