BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE
TERMS OF THIS LICENCE WHICH WILL BIND YOU AND, IF APPLICABLE, YOUR EMPLOYEES. IF
YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE
SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW BY
CLICKING ON THE "CANCEL" BUTTON BELOW. IF YOU PURCHASED THIS SOFTWARE FROM AN
AUTHORISED THIRD-PARTY RETAILER, PLEASE NOTE THAT THE RETAILER HAS THE RIGHT TO
ENTER INTO THIS LICENCE ON OUR BEHALF.
1. | Grant and scope of licence |
1.1 | In consideration of 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 | You may: |
1.2.1 | install and use the Software for your private or internal business
purposes only, either (as agreed between the parties): |
1.2.1.1 | on one operating
system if the Licence is a single-user licence or the Software is for single use
provided that the operating system does not allow multiple concurrent interactive users; or |
1.2.1.2 | if the Licence is a multi-user or network licence, for the number of
concurrent users agreed between you and us; |
1.2.2 | make up to five copies of the
Software for personal back-up purposes only, provided that this is necessary for
the activities permitted by condition 2.1; |
1.2.3 | 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; |
1.2.4 | use any Documentation in support of the use permitted under condition 1.1
and make up to five copies of the Documentation as are reasonably necessary for its lawful and personal use. |
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 all copies of the Software secure and to maintain accurate and up-to-date
records of the number and locations of all installations and copies of the Software; |
2.1.6 | to supervise and control use of the Software and, if applicable,
ensure that the Software is used by your employees and representatives in
accordance with the terms of this Licence; |
2.1.7 | to include the copyright notice
of the Licensor on all entire and partial copies of the Software in any form; |
2.1.8 | 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; and |
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. |
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
is 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. | Internet connectivity and privacy |
4.1 | The Software may cause your computer, automatically without notice
or at the request of the user, to connect to the internet and communicate with the Licensor's server
for such purposes as: |
4.1.1 | checking for Software updates that may be available for download; |
4.1.2 | checking for, and providing, important and useful product information; or |
4.1.3 | validation of the Software licence key for the purpose of verifying
that the product is properly licensed. |
4.2 | For the process of Software licence key validation, the licence key shall
be included within the communication and, if we believe that the Software is not properly licensed, the
functionality of the Software may be affected. |
4.3 | For when the user requests online information about a reported computer health item, a topic number shall be included within the communication for the purpose of identifying the type of information required. |
4.4 | Whenever the Software communicates with our server, the information may
additionally include the Software version and Licence type, and other than the exceptions set out above,
the information will be processed in accordance with our privacy policy available at
http://www.cyberflair.com/go/privacy. |
5. | Warranty |
5.1 | The Licensor warrants that provided you have purchased a licence:
|
5.1.1 | for a period of 90 days after the date of shipment of the Software licence key to you
(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
that the Documentation correctly describes the operation of the Software in all
material respects; |
5.1.2 | it has tested the Software for viruses using
commercially available virus-checking software, consistent with current industry
practice. |
5.2 | You acknowledge that all free and trial versions of the Software
are supplied "as is" without warranty of any kind. You acknowledge that by
installing all free and trial versions you shall do so at your own risk. |
5.3 | 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. |
5.4 | 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. |
5.5 | 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. |
6. | Licensor's liability |
6.1 | Nothing in
this Licence shall limit or exclude the liability of either party for death or
personal injury resulting from negligence, fraud, fraudulent misrepresentation. |
6.2 | Subject to condition 6.1, 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 be limited as follows: |
6.2.1 | loss of income; |
6.2.2 | loss of business profits or contracts; |
6.2.3 | business interruption; |
6.2.4 | loss of the use of money or anticipated savings; |
6.2.5 | loss of information; |
6.2.6 | loss of opportunity, goodwill or reputation; |
6.2.7 | loss of, damage to or corruption of data; or |
6.2.8 | 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 condition 6.2 shall not prevent claims
for loss of or damage to your tangible property that fall within the terms of
condition 5 or any other claims for direct financial loss that are not excluded
by any of categories 6.2.1 to 6.2.8 inclusive of this condition 6.2. |
6.3 | Subject to condition 6.1 and condition 6.2, 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 a sum
equal to 100% of the licence fee. |
6.4 | Subject to condition 6.1, condition 6.2
and condition 6.3, the Licensor's liability for infringement of third party
intellectual property rights shall be limited to breaches of rights subsisting
in the UK. For the avoidance of doubt, the Licensor shall not be liable for
infringement of third party intellectual property rights subsisting outside the
UK. |
6.5 | 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. |
7. | Termination |
7.1 | 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: |
7.1.1 | a petition for a bankruptcy order to be made against you has been
presented to the court; or |
7.1.2 | 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, or becomes unable to pay
its debts (within the meaning of section 123 of the Insolvency Act 1986). |
7.2 | Upon termination for any reason: |
7.2.1 | all rights granted to you under this
Licence shall cease; |
7.2.2 | you must cease all activities authorised by this Licence; |
7.2.3 | you must immediately pay to the Licensor any sums due to the
Licensor under this Licence; and |
7.2.4 | 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. |
8. | Transfer of rights and obligations |
8.1 | This Licence is binding on you and us and on our respective
successors and assigns. |
8.2 | 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. |
8.3 | 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. |
9. | Notices |
| All notices given by you to the Licensor must be given to CyberFlair
Limited by completing a web posting form available at http://www.cyberflair.com/go/contact. The
Licensor may give notice to you at either the e‑mail or postal address you
provided to its representative 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. |
10. | Events outside the Licensor's control |
10.1 | 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). |
10.2 | 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: |
10.2.1 | strikes, lock-outs or other industrial action; |
10.2.2 | civil commotion, riot, invasion,
terrorist attack or threat of terrorist attack, war (whether declared or not) or
threat or preparation for war; |
10.2.3 | fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; |
10.2.4 | impossibility of the use
of railways, shipping, aircraft, motor transport or other means of public or
private transport; |
10.2.5 | impossibility of the use of public or private telecommunications networks; |
10.2.6 | the acts, decrees, legislation, regulations or restrictions of any government. |
10.3 | 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. |
11. | Waiver |
11.1 | 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. |
11.2 | A waiver by the Licensor of any default shall not constitute a waiver of
any subsequent default. |
11.3 | 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. |
12. | 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. |
13. | Entire agreement |
13.1 | 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. |
13.2 | 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. |
13.3 | 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. |
13.4 | Nothing in this clause shall limit or exclude any liability for fraud. |
14. | 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. |