MITREFINCH LIMITED
SOFTWARE LICENCE
PLEASE READ THIS CAREFULLY BEFORE USING MATERIALS
A. PROPERTY OF LICENSOR:
YOU MAY OBTAIN A COPY OF THIS SOFTWARE PRODUCT EITHER BY COPYING IT FROM AN AUTHORISED CD-ROM OR OTHER MEDIA (‘HARD MEDIA’) OR BY DOWNLOADING IT REMOTELY FROM OUR SERVER (IF THE SOFTWARE IS AN UPGRADE OR ENHANCEMENT TO THE MATERIALS). THE COPYRIGHT, DATABASE RIGHTS AND ANY OTHER INTELLECTUAL PROPERTY RIGHTS IN THE PROGRAMS AND DATA WHICH CONSTITUTE THIS SOFTWARE PRODUCT (‘THE MATERIALS’), TOGETHER WITH THE HARD MEDIA ON WHICH THEY WERE SUPPLIED TO YOU, ARE AND REMAIN THE PROPERTY OF MITREFINCH LIMITED (‘MITREFINCH’). YOU ARE LICENSED TO USE THEM ONLY IF YOU ACCEPT ALL THE TERMS AND CONDITIONS SET OUT BELOW.
B. LICENCE ACCEPTANCE PROCEDURE:
BY CLICKING ON THE ACCEPTANCE BUTTON WHICH FOLLOW THIS LICENCE AGREEMENT (MARKED ‘DO YOU ACCEPT THESE TERMS AND CONDITIONS?’, YOU INDICATE ACCEPTANCE OF THIS LICENCE AGREEMENT AND THE LIMITED WARRANTY AND LIMITATION OF LIABILITY SET OUT IN THIS LICENCE AGREEMENT. SUCH ACCEPTANCE IS EITHER ON YOUR OWN BEHALF OR ON BEHALF OF ANY CORPORATE ENTITY WHICH EMPLOYS YOU OR WHICH YOU REPRESENT (‘CORPORATE LICENSEE’). IN THIS LICENCE AGREEMENT, ‘YOU’ INCLUDES BOTH THE READER AND ANY CORPORATE LICENSEE.
C. LICENCE REJECTION PROCEDURE:
YOU SHOULD THEREFORE READ THIS LICENCE AGREEMENT CAREFULLY BEFORE CLICKING ON THE ACCEPTANCE BUTTON. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU SHOULD CLICK ON THE ‘REJECT’ BUTTON, DELETE THE MATERIALS FROM YOUR COMPUTER AND PROMPTLY (AND IN ANY EVENT, WITHIN 14 DAYS OF RECEIPT) RETURN TO MITREFINCH OR ITS LICENSED RESELLER (A) THE CD-ROM OR OTHER MEDIA; (B) ANY OTHER ITEMS PROVIDED THAT ARE PART OF THIS PRODUCT; AND (C) YOUR DATED PROOF OF PURCHASE. ANY MONEY YOU PAID TO MITREFINCH OR ITS LICENSOR RESELLER FOR THE MATERIALS WILL BE REFUNDED, ALONG WITH ALL COSTS OF POSTAGE AND PACKING.
D. OTHER AGREEMENTS:
IF YOUR USE OF THESE PROGRAMS AND DATA IS PURSUANT TO AN EXECUTED LICENCE AGREEMENT, SUCH AGREEMENT SHALL APPLY INSTEAD OF THE FOLLOWING TERMS AND CONDITIONS.
LICENCE AGREEMENT AND LIMITED WARRANTY
1. OWNERSHIP OF MATERIALS AND COPIES
The Materials and related documentation are copyrighted works of authorship, and are also protected under applicable database laws. Mitrefinch retains ownership of the Materials and all subsequent copies of the Materials, regardless of the form in which the copies may exist and the Hard Media. This licence is not a sale of the original Materials or any copies.
2. LICENCE
Provided that you have paid the applicable licence fee as specified in writing and invoiced to you by Mitrefinch, Mitrefinch grants to you a limited, non-exclusive licence to:
2.1 Use and copy the Materials for use on any computer system owned, leased and/or controlled by you [or any member of your corporate group, which expression includes Corporate Licensee, Corporate Licensee’s majority-owned subsidiaries, any parent company having a majority-owned interest in Corporate Licensee, and such parent’s majority-owned subsidiaries;]
2.2 Retain one copy of the Materials for back-up, archival or other security purposes.
3. LICENCE RESTRICTIONS
You may not use, copy, modify or transfer the materials (including any related documentation) or any copy, in whole or in part, including any print-out of all or part of any database, except as expressly provided for in this licence. If you transfer possession of any copy of the materials to another party except as provided above, your licence is automatically terminated. You may not translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the materials, except as expressly permitted by the law or this agreement. You may not vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the materials.
4. NO TRANSFER
The Materials are licensed only to you. You may not rent, lease, sublicense, sell, assign, pledge, transfer or otherwise dispose of the materials, on a temporary or permanent basis, without the prior written consent of Mitrefinch.
5. UNDERTAKINGS
You undertake to:
5.1 ensure that, prior to use of the Materials by your employees or agents, all such parties are notified of this licence and the terms of this Agreement; and
5.2 hold all drawings, specifications, data (including object and source codes), software listings and all other information relating to the Materials confidential and not at any time, during this licence or after it’s expiry, disclose the same, whether directly or indirectly, to any third party without Mitrefinch’s consent; and
5.3 purchase a licence for the Microsoft software necessary to operate the Materials and to comply with the terms of such licence until this Agreement is terminated in accordance with clause 12 below.
6. LIMITED WARRANTY
6.1 Subject to the limitations and exclusions of liability below, Mitrefinch warrants that (a) the Hard Media on which the Materials are furnished will be free from material defects under normal use; and that (b) the copy of the Materials will materially conform to the documentation which accompanies the Hard Media. The Warranty Period is [ninety (90) days] from the date of delivery to you.
6.2 Mitrefinch will also indemnify you for personal injury or death solely and directly caused by any defect in its products or the negligence of its employees.
6.3 Mitrefinch shall not be liable under the said warranty above if the Materials fail to operate in accordance with the said warranty as a result of any modification, variation or addition to the Materials not performed by Mitrefinch or caused by any abuse, corruption or incorrect use of the Materials, including use of the Materials with equipment or other software which is incompatible.
7. NO OTHER WARRANTIES
The foregoing warranty is made in lieu of any other warranties, representations or guarantees of any kind, either expressed or implied, including, but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result. You assume the entire risk as to the quality and performance of the Materials. Should the Materials prove defective, you (and not Mitrefinch nor any licensed reseller) assume the entire cost of all necessary servicing, repair or correction. Mitrefinch does not warrant that the Materials will meet your requirements or that the operation of the Materials will be uninterrupted or error free.
8. LIMITATION OF LIABILITY
Mitrefinch’s entire liability and your exclusive remedy shall be:
8.1 the replacement of any Hard Media not meeting Mitrefinch’s ‘Limited Warranty’ and which is returned to Mitrefinch together with dated proof of purchase, or
8.2 if, during the Warranty Period, Mitrefinch is unable to deliver replacement Hard Media which is free of material defects, you may terminate this Agreement by returning the Materials to Mitrefinch and any money you paid to Mitrefinch for the Materials will be refunded, along with the cost of postage and packing.
9. EXCLUSION OF LIABILITY
Except in respect of personal injury or death caused directly by the negligence of Mitrefinch, in no event will Mitrefinch be liable to you for any damages, including any lost profits, lost savings, loss of data or any indirect, special, incidental or consequential damages arising out of the use of or inability to use such materials, even if Mitrefinch has been advised of the possibility of such damages. Nothing in this agreement limits liability for fraudulent misrepresentation.
10. YOUR STATUTORY RIGHTS
This licence gives you specific legal rights and you may also have other rights that vary from country to country. Some jurisdictions do not allow the exclusion of implied warranties, or certain kinds of limitations or exclusions of liability, so the above limitations and exclusions may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the above limitations and exclusions shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. If any part of the above limitations or exclusions is held to be void or unenforceable, such part shall be deemed to be deleted from this Agreement and the remainder of the limitation or exclusion shall continue in full force and effect. Any rights that you may have as a consumer (i.e. a purchaser for private as opposed to business, academic or government use) are not affected.
11. TERM
The licence is effective until terminated. You may terminate it at any time by destroying the Materials together with all copies in any form. It will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement or if you voluntarily return the Materials to us. You agree upon such termination to destroy the Materials together with all copies in any form.
12. EXPORT
You will comply with all applicable laws, rules, and regulations governing export of goods and information, including the laws of the countries in which the Materials were created. In particular, you will not export or re-export, directly or indirectly, separately or as a part of a system, the Materials or other information relating thereto to any country for which an export licence or other approval is required, without first obtaining such licence or other approval.
13. GENERAL
13.1 You agree that Mitrefinch shall have the right, after supplying undertakings as to confidentiality, to audit any computer system on which the Materials are installed in order to verify compliance with this software licence.
13.2 This Agreement constitutes the complete and exclusive statement of the Agreement between Mitrefinch and you with respect to the licence of the Materials and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter.
13.3 Any clause in this Agreement that is found to be invalid or unenforceable shall be deemed deleted and the remainder of this Agreement shall not be affected by that deletion.
13.4 Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole of part of this Agreement nor prejudice that party’s right to take subsequent action.
13.5 This Agreement is personal to you and you may not assign, transfer, sub-contract or otherwise part with this Agreement or any right or obligation under it without Mitrefinch’s prior written consent. Mitrefinch may transfer, sub-contract assign or otherwise part with this Agreement or any right or obligation under it and shall notify the Licensee in writing of any such action as soon as possible thereafter.
13.6 For the avoidance of doubt nothing in this Agreement shall confer on any third party any benefit or the right to enforce any term of this Agreement
13.7 This Agreement shall be governed by and construed in all respects in accordance with the laws of England and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
13.8 The parties agree that The Electronic Commerce (E C Directive) Regulations 2002 shall not apply to this Agreement.
13.9 Should you have any questions concerning this Agreement you may contact Mitrefinch Ltd.