THESE TERMS OF SERVICE WERE LAST UPDATED ON: 14TH NOVEMBER 2017. ANY FUTURE CHANGES TO THESE TERMS WILL BE REFLECTED ON THIS PAGE.
SHARPCLOUD SOFTWARE END-USER LICENCE AGREEMENT (EULA)
This page (together with the documents referred to on it) sets out the terms on which SharpCloud users, as a business or individual guest or registered user subscribing to the SharpCloud software service as identified in any purchase order or otherwise in writing from time to time (you), may make use of and access, the SharpCloud software services provided via www.sharpcloud.com, mysharpcloud.com and any subdomains thereof (our site) or otherwise.
Access to or use of our SharpCloud software is also subject to you agreeing to such terms as detailed in the software end-user licence agreement [see below].
Resale of our SharpCloud software by any SharpCloud accredited partner / other authorised third party is subject to such accredited partner / authorised third party agreeing to such terms as detailed in their reseller agreement.
1. Information about us.
Our site is operated by SharpCloud Software Limited (Registered number England and Wales: 07786718) and any other SharpCloud group company being any subsidiary company or holding company from time to time of SharpCloud Software Limited (us, our, we, SharpCloud). References to holding company or subsidiary company are as defined in the Companies Act 2006.
You can contact us by email: email@example.com
2. Accessing our site.
Ways in which SharpCloud Software may be made available to you:
- Provided by us from Multi-tenant Azure (shared database) hosted on the Microsoft Azure US Cloud, Microsoft Azure UK Cloud or Microsoft Azure EU Cloud.
- Provided by us on Single-tenant Azure (private subscription) hosted on the Microsoft Azure Cloud from any of Microsoft’s hosting regions.
- Provided by you or a SharpCloud accredited partner / other authorised third party on Single-tenant Azure (private subscription) hosted on the Microsoft Azure Cloud from any of Microsoft’s hosting regions.
- Provided by you or a SharpCloud accredited partner / other authorised third party ‘On Premises’ SharpCloud being installed on your hardware inside your firewall. A full installation guide can be sent to your IT team and pre-requisites (as at July 2017) include: Windows Server 2008 R2, Microsoft .net framework 4.5, MSSQL 2008 or later. SharpCloud will also require some pre-requisite Open Ports: 1433, 6379, 80 and 8080 (and 443 if HTTPS is used).
- Hosted, managed and provided by you or a SharpCloud accredited partner / other authorised third party (hosted on private cloud).
2.2 In exceptional circumstances we may restrict access to some parts of our site, or our entire site, to users who have registered with us. Under these circumstances, we’ll always endeavour to have the site up for you as soon as possible.
2.3 Free access to certain parts of our site is permitted without registration only for information and marketing purposes. In order to use the service, users must register with us and, if applicable, pay a subscription fee.
2.6 You are responsible for making all arrangements necessary for you to have access to our site. You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these terms, and that they comply with them.
3. Prohibited uses
3.1 You may use our site only for lawful purposes. You may not use our site:
- In any way that breaches any applicable local, national or international law or regulation.
- In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
- For the purpose of harming or attempting to harm minors in any way.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards (see below).
- To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
- To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
You also agree:
- Not to share login and passwords across multiple users.
- That SharpCloud usage is provided strictly to each individual as a named user subscription.
- Not to access without authority, interfere with, damage or disrupt:
- any part of our site;
- any equipment or network on which our site is stored;
- any software used in the provision of our site; or
- any equipment or network or software owned or used by any third party
4.1 To subscribe to the service you will need to follow the sign-up subscription procedures (https://my.sharpcloud.com/signup), and review the various payment methods applicable to each SharpCloud product (more here: https://www.sharpcloud.com/pricing). If you are subscribing to the service through a third party supplier (including a SharpCloud accredited partner / other authorised third party), please refer to that supplier’s terms and conditions.
4.2 Your payment will cover access to the service for the period specified. The price of any subscription is the price in force at the date and time of your order. We try to ensure that our prices displayed on our site are accurate but the price on your order will need to be validated by us as part of the acceptance procedure (see sub-section 4.3 below). We will inform you if a subscription’s correct price is higher than that stated in your subscription request and you may cancel the order and decide whether or not to subscribe to the service at the correct price. The prices are exclusive of applicable taxes unless otherwise stated.
4.3 We are entitled to refuse any subscription request placed by you. If your subscription request is accepted, we will confirm acceptance to you by online electronic means (‘Confirmation’) to the email address you have given us on registration or on ordering. The subscription to the service will be made available to you on Confirmation. Making the service available to you on Confirmation constitutes performance of our service.
4.4 You undertake that all details you provide to us or any third-party supplier (including any SharpCloud accredited partner / other authorised third party) for the purpose of subscribing to the service will be correct, that the credit or debit card, or any electronic cash, which you use is your own and that there are sufficient funds or credit facilities to cover the cost of any subscription. We reserve the right to obtain validation of your credit or debit card details before providing you with any service.
5.1 If you wish to cancel your subscription to any part of the service you may do so within seven (7) working days of Confirmation for any reason (including if you simply change your mind) by sending us a notice in writing or other durable medium (including email), but only if you have not yet been granted access by us to any service via the site and not otherwise. If you exercise your right to cancel as set out in this sub-section 5.1, you will not be entitled to a refund from us for any outstanding unused subscription fees associated with your account.
5.2 Sub-section 5.1 only applies to subscriptions made directly with us. If you have ordered a subscription package via a third party (including any SharpCloud accredited partner / other authorised third party), please refer to that third party’s cancellation policy.
5.3 If you wish to reactivate a cancelled subscription, a reactivation fee will be applicable. By reactivating, you will have access to all content you previously owned within SharpCloud. Please contact your SharpCloud representative for further information.
6. Interactive services
6.1 Where we do provide any interactive service, we will provide clear information to you about the kind of service offered, if it is moderated and what form of moderation is used (including whether it is human or technical).
6.2 We will do our best to assess any possible risks for users from third parties when they use any interactive service provided on our site, and we will decide in each case whether it is appropriate to use moderation of the relevant service (including what kind of moderation to use) in the light of those risks. However, we are under no obligation to oversee, monitor or moderate any interactive service we provide on our site, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.
6.3 By submitting your details on our site you are stating that you are eighteen (18) years old or older. We will remove your personal information from our records if it comes to our attention that you are under eighteen (18).
6.4 The use of any of our interactive services by a minor is subject to the consent of their parent or guardian. We advise parents who permit their children to use an interactive service that it is important that they communicate with their children about their safety online, as moderation is not fool proof. Minors who are using any interactive service should be made aware of the potential risks to them.
6.5 Where we do moderate an interactive service, we will normally provide you with a means of contacting the moderator, should a concern or difficulty arise.
7. Content standards
7.1 These content standards apply to any and all material which you contribute to our site (contributions), and to any interactive services associated with it.
7.2 You must comply with the spirit of the following standards as well as the letter. These standards apply to each part of any contribution as well as to its whole.
7.3 Contributions must:
- Be accurate (where they state facts).
- Be genuinely held (where they state opinions).
- Comply with applicable law in England and Wales and in any country from which they are posted.
Contributions must not:
- Contain any material which is defamatory of any person.
- Contain any material which is obscene, offensive, hateful or inflammatory.
- Promote sexually explicit material.
- Promote violence.
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any copyright, database right or trade mark of any other person.
- Be likely to deceive any person.
- Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
- Promote any illegal activity.
- Be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety.
- Be likely to harass, upset, embarrass, alarm or annoy any other person.
- Be used to impersonate any person, or to misrepresent your identity or affiliation with any person.
- Give the impression that they emanate from us, if this is not the case.
- Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
7.4 We reserve the right to remove any content which breaches or may breach the standards set out above in our sole opinion.
8. Intellectual property rights
8.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the service are the sole responsibility of the person from which such content originated. All such information is referred to below as the “content”.
8.2 You should be aware that content presented to you as part of the service may be protected by intellectual property rights which are owned by the persons who make available that content (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this content (either in whole or in part) unless you have been specifically told that you may do so by us or by the owners of that content, in a separate agreement.
8.3 We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all content from our service.
8.4 You understand that by using the service you may be exposed to content that you find offensive, indecent or objectionable and that, in this respect, you use the service at your own risk.
8.5 You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any content that you create, transmit or display while using the service and for the consequences of your actions (including any loss or damage which we may suffer) by doing so.
9. Proprietary rights
Please refer to our software end user licence agreement [see below] which, without prejudice to any provisions detailed herein, sets out our respective proprietary rights.
Please refer to our software end user licence agreement [see below] which sets out the software licence provisions applicable to the service.
11. Content licence from you
11.1 You retain copyright and any other rights you already hold in content which you submit, post or display on or through, the service. For the sole purpose to display, distribute and provide the service for you, you give us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, perform, display and distribute any content which you submit, post or display on or through, the service.
11.2 You understand that we, in performing the required technical steps to provide the service to our users, may (a) transmit or distribute your content over various networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit us to take these actions.
11.3 You confirm and warrant to us that you have all the rights, power and authority necessary to grant the above licence.
12. Reliance on information posted
12.1 Commentary and other materials posted on our site are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our site, or by anyone who may be informed of any of its contents.
13. Our site changes constantly
13.1 Our site automatically updates constantly. If the need arises and only in exceptional circumstances, we may suspend access to our site. Any of the material on our site may be out of date at any given time, and we are under no obligation to update such material (including without limitation the tools provided as part of our service).
14. Our liability (for the avoidance of doubt this sub-section 14 sets out our liability relating to your access and use of our www.sharpcloud.com website, not mysharpcloud.com or any subdomains thereof. All references to “site” in this sub-section 14 therefore mean www.sharpcloud.com)
14.1 Our site, the material displayed on our site is provided “as is” without any guarantees, conditions or warranties as to its accuracy. We disclaim all other warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement as to the information, content, tools and materials available through the site. We do not represent or warrant that materials or tools in the site are accurate, complete, reliable, current or error-free.
14.2 We are not responsible for typographical errors or omissions or for the malfunction of our site or any part of it including tools that may be provided via our site or the results from such tools. While we attempt to make your access and use of the site safe, we cannot and do not represent or warrant that the site or its server(s) are free of viruses or other harmful components; therefore, you should use industry-recognised software to detect and disinfect viruses from any download.
14.3 To the extent permitted by law, we, other members of our group of companies and third parties connected to us hereby expressly exclude:
- All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
- Any liability (whether in contract or tort) for any direct, indirect or consequential loss or damage incurred by any user in connection with our site (including without limitation the tools provided via our site) or in connection with the use, inability to use, or results of the use of our site, any websites linked to it and any materials posted on it, or from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from Acts of God, communications failure, theft, destruction or unauthorised access to our records, programs or otherwise, including, without limitation any liability for:
- loss of income or revenue;
- loss of business;
- loss of profits or contracts;
- loss of anticipated savings;
- loss of data;
- loss of goodwill;
- wasted management or office time; and
- for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
14.4 In no event shall our aggregate liability, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the site exceed any compensation you pay, if any, to us for access to or use of the site.
14.5 This does not seek to limit or exclude in any way our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.
15. Information about you and your visits to our site
16. Viruses, hacking and other offences
16.1 You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack.
16.2 By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.
16.3 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any material posted on it, or on any website linked to it.
17. Links from our site
17.1 We have no control over and do not host third party content or services. Similarly, we cannot control links to other websites or other Internet resources. These resources, content and services are provided to you “as is” to facilitate your web browsing.
17.2 As such, you acknowledge that we may not be held liable with respect to third party resources, content or services and you undertake to directly and exclusively contact the appropriate third party with any claim or request you may have. We may not be held liable with respect to the content, advertisements, products, services or any other data or information available on or from those external sites or sources. Furthermore, you understand that we may not be held liable for any damages or loss arising from or connected with the use of or the reliance on the contents, goods, or services available on those external sites or sources
18. Suspension and termination
18.1 We will determine, in our discretion, whether there has been a breach of these terms and conditions through your use of our site. When a breach of these terms has occurred, we may take such action as we deem appropriate which may result in our taking all or any of the following actions:
- Immediate, temporary or permanent withdrawal of your right to use our site.
- Immediate, temporary or permanent removal of any posting or material uploaded by you to our site.
- Issue of a warning to you.
- Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
- Further legal action against you.
- Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
- Deletion of your account and its associated data.
18.2 We reserve the right to delete data from your account or your entire account if:
- You contact firstname.lastname@example.org and have the authority to request deletion of your registered account.
- Your account lapses from a paid account to a free account and thus only allows you access to only one (1) selected SharpCloud story. All other stories and associated data will be deleted.
20. Dispute Policy
20.1 If you believe any content posted by another user is in breach of these terms or in any other way infringes your rights, you can send us a formal notice (a Moderation Notice):
20.2 A Moderation Notice should be sent either:
By Post: to our current registered office, marked for the attention of “The Legal Department”; or
By Email: to email@example.com.
20.3 The Moderation Notice should include details of:
- the date, time and listing of the comment(s)/content concerned;
- the action that you wish us to take in respect of the comment(s)/content; and
- the basis on which the action requested is requested (e.g. alleging it to be defamatory, abusive or otherwise in breach of these terms).
20.4 On receipt of the Moderation Notice, we shall, in most circumstances:
- immediately suspend the comment(s)/content concerned;
- commence an investigation into it/them; and contact the user(s) concerned with a copy of your Moderation Notice giving them an opportunity to make representations to us in connection with their comment(s)/content and any points you made in your Moderation Notice; and
- requesting that they respond to us within 21 days.
20.5 If we do not receive a response from the user(s) within 21 days, we will permanently delete the relevant comment(s)/content.
20.6 Once we have received a response from the user(s), we will take a decision within 21 days on whether to reinstate the comment(s)/content, permanently delete it/them or keep it/them suspended pending further investigation.
20.7 Once we have taken our decision, we will notify you and the user(s) concerned as soon as possible. When notifying you of the decision, we will attach a copy of the user(s)’ representations (if any), redacted to protect their identity.
20.8 For the purposes of openness and fairness, we will send copies of all relevant correspondence addressed to it to all parties, again redacted where appropriate to protect the user(s)’ identity.
21. Jurisdiction, applicable law and third parties
21.1 The English courts will have exclusive jurisdiction over any claim arising from, or related to, a visit to our site although we retain the right to bring proceedings against you for breach of these conditions in your country of residence or any other relevant country.
21.3 A person who is not a party to these terms shall have not right to enforce any provision of these terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
SHARPCLOUD SOFTWARE END-USER LICENCE AGREEMENT (EULA)
PLEASE READ CAREFULLY BEFORE INSTALLING OR USING THIS SOFTWARE:
This licence agreement together with any other documents referred to herein (the Licence) is a legal agreement between (1) any business or individual subscribing to the SharpCloud software service as identified in any purchase order or otherwise in writing from time to time (the Licensee / you); and (2) SharpCloud Software Limited with registered number 07786718 and any SharpCloud group company being any subsidiary company or holding company from time to time of SharpCloud Software Limited, as defined in the Companies Act 2006 (the Licensor) for:
- SharpCloud Viewer (free account) or SharpCloud for Small Business / SharpCloud for Enterprise (paid accounts) SharpCloud software, together with any data supplied with that software and the associated media (the Software); and
- printed materials and any online or electronic documentation made available by the Licensor from time to time concerning the Software (the Documentation).
Licensor licenses use of the Software and Documentation to Licensee on the basis of this Licence.
Licensor does not sell the Software or Documentation to Licensee on the basis of this Licence. Licensor remains at all times the owner of the Software and Documentation.
IMPORTANT NOTICE TO ALL USERS
- IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS LICENCE, THEN LICENSOR WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION TO LICENSEE AND LICENSEE MUST DISCONTINUE THE INSTALLATION PROCESS IMMEDIATELY AND MUST NOT SEEK TO USE THE SOFTWARE IN ANY WAY.
- IN THIS CASE LICENSEE MUST RETURN OR PERMANENTLY DELETE ANY COPY OF THE SOFTWARE WHICH IT HOLDS ALONG WITH ALL ACCOMPANYING DOCUMENTATION TO THE LICENSOR OR THE LICENSOR’S AUTHORISED RESELLER/DISTRIBUTOR FROM WHOM IT PURCHASED THEM WITHIN 7 WORKING DAYS OF PURCHASE AND IF THE LICENSOR DOES SO ANY LICENCE FEE ALREADY PAID BY IT WILL BE REFUNDED.
LICENSEE SHOULD PRINT A COPY OF THIS LICENCE FOR FUTURE REFERENCE
1. GRANT AND SCOPE OF LICENCE
1.1 In consideration of Licensee agreeing to abide by the terms of this Licence for free accounts and the payment of the agree fees for paid accounts. Licensor hereby grants to Licensee a non-exclusive, non-transferable, worldwide licence (only for such Registered Users as agreed by the Licensor in writing (Registered Users)) to use the Software and the Documentation at any location in the world on the terms of this Licence.
1.2 Licensee may:
(a) install and use the Software for its internal business purposes only and subject to those other restrictions on use as have been agreed between Licensee and Licensor or Licensor’s authorised reseller/distributor;
(b) receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by Licensor from time to time and Licensee agrees to promptly install any such updates as are provided to it from time to time; and
(c) use any Documentation in support of the permitted use of the Software under this Licence and make such copies of the Documentation as may be reasonably required for its lawful use.
1.3 The Software and Documentation is supplied to Licensee only for its internal business use and Licensee agrees not to use the Software or Documentation for any re-sale purposes. Any resale of Software or Documentation shall be subject to separate reseller terms.
Except as expressly set out in this Licence or as permitted by any applicable law, Licensee undertakes:
(a) 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 agreed software testing;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) 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;
(d) 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 Licensee during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program;
(ii) is not disclosed or communicated without Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to supervise and control use of the Software and ensure that the Software is used by its employees and representatives who are Registered Users only in accordance with the terms of this Licence;
(g) to ensure that paid subscriptions are only transferred from Registered Users to any other user by the Licensee’s pack administrators under any of the following conditions:
(i) Where the originally Registered User has left the Licensee organisation;
(ii) Where the originally Registered User is no longer involved in the activities for which the SharpCloud subscription was originally purchased;
(iii) Where the new user is an employee of the Licensee company or a company majority owned (i.e. holding at least 51% of the voting shares) by the Licensee company; or
(iv) A paid subscription cannot be transferred back to the originally Registered User within a period of 12 months from the date on which the subscription was originally purchased.
(h) to include a copyright notice identifying the Licensor as the owner of the Software on all entire and partial copies of the Software in any form; and
(i) 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 its employees without prior written consent from Licensor.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Licensee acknowledges that all intellectual property rights in the Software and the Documentation throughout the world belong to Licensor, that rights in the Software are licensed (not sold) to Licensee, and as such, the Licensee has 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 Licensee acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
3.3 The integrity of the Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software are not misappropriated. Licensee 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 its possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
4. LIMITED WARRANTY
4.1 Licensor warrant that:
(a) the Software will, when properly used and on an Compatible Web Browser for which it was designed (which the Licensee must ensure from https://www.sharpcloud.com/support), perform substantially in accordance with the functions described in the Documentation; and
(b) that the Documentation correctly describes the operation of the Software in all material respects for a period of 90 days from the date of installation of the Software (the Warranty Period).
4.2 If, within the Warranty Period, Licensee notifies Licensor in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, Licensor will, at its sole option and as Licensee’s sole and exclusive remedy, either repair or replace the Software (provided that Licensee makes available all the information that may be necessary to help Licensor to remedy the defect or fault, including sufficient information to enable Licensor to recreate the defect or fault) or refund to Licensee the price paid by it for the Software.
4.3 The above warranty does not apply if any defect or fault in the Software results from Licensee or anyone acting on Licensee’s behalf having:
(a) amended the Software; and/or
(b) used the Software in contravention of the terms of this Licence.
5. LIMITATION OF LIABILITY
5.1 Licensee acknowledges that the Software has not been developed to meet its individual requirements and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation are suitable for its requirements.
5.2 Licensor does not seek to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; and/or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of this Licence shall be read as subject to this Clause 5.2.
5.3 Subject at all times to Clause 5.4, the maximum liability of the Licensor for all claims under this Licence howsoever arising shall in be limited in aggregate to the value of the first two months licence/subscription fee paid by the Licensee with respect to its use of the Software (regardless of whether or not such fee was paid by the Licensee direct to the Licensor or to the Licensor’s authorised distributor or reseller.
5.4 Licensor shall not be liable for: installation of the Software; loss of business; loss of use; loss of profit; loss of anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; product recall costs; damage to reputation; and/or any consequential, special or indirect loss or damage in any case.
5.5 This Licence sets out the full extent of Licensor’s obligations and liabilities in respect of the supply and use of the Software and Documentation. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Licensor.
5.6 Each party to this Licence shall be responsible for its own acts and/or omissions and those of its officers, employees and agents.
6.1 Licensor may terminate this Licence immediately by written notice to Licensee if Licensee:
(a) commits a material or persistent breach of this Licence which the Licensee fails to remedy (if remediable) within 14 days after the service of written notice requiring Licensee to do so; and/or
(b) fails to pay any licence or subscription fee and/or any other payment due from it with respect to its use of the Software (regardless of whether such payment is owed by the Licensee to the Licensor and/or to any of its authorised distributors or resellers) which has become overdue within 5 days of receipt of a written or emailed demand to make payment.
6.2 Upon termination of this Licence for any reason:
(a) all rights granted to Licensee under this Licence shall cease;
(b) Licensee must cease all activities authorised by this Licence; and
(c) If installed, Licensee must immediately delete or remove the Software from all computer equipment in its possession or under its control and immediately destroy or return to Licensor (at Licensor’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to Licensor via a senior officer of Licensee that it has done so.
7. COMMUNICATIONS AND NOTICES
7.1 Any notices to be served by either of the Licensor or Licensee on the other by the other shall be in writing and shall be sent by pre-paid registered post to the registered office address of the recipient. Such notices shall be deemed to have been received by the recipient 72 hours after posting provided applicable evidence of posting is retained and produced on request.
8. OTHER IMPORTANT TERMS
8.1 Neither Licensor nor Licensee may transfer its rights and/or obligations under this Licence to any third party without the prior written approval of the other.
8.2 A person who is not a party to this Licence shall have no right to enforce any term of this Licence pursuant to the Contracts (Rights of Third Parties) Act 1999.
8.3 This Licence, the Documentation and any other document expressly referred to in this License or the Documentation constitutes the entire agreement between the Licensor and the Licensee. The Licensee acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Licensor which is not set out in this Licence or the Documentation and any other document expressly referred to in this License or the Documentation.
8.4 If Licensor fails to insist that Licensee performs any of its obligations under this Licence, or if Licensor does not enforce its rights against Licensee, or if Licensor delays in doing so, that will not mean that Licensor has waived its rights against Licensee and will not mean that Licensee does not have to comply with those obligations. If Licensor does agree to waive any default by Licensee, that will only be valid if given by Licensor in writing and any such waiver will not mean that Licensor will automatically waive any later default by Licensee.
8.5 Each of the clauses of this Licence operate separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.
This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. The Licensor and Licensee agree to the exclusive jurisdiction of the courts of England and Wales.