1 Definitions
In this
agreement:
| “Consumer” |
means any natural person who, in
connection with this agreement, is acting for purposes which are outside his
business.
|
| “Confidential Information” |
means information relating to the
Software, including all material contained in its distributable files,
activation and registration code, all copyright and trade and other marks,
whether registered or not.
|
|
“Content”
|
means any material in any form published
on the Website by us or any third party with our consent.
|
| “End-User Devices” |
means Personal Digital Assistants and similar
devices including tablet PCs, laptops etc as approved by us.
|
| “EULA” |
means end user licence agreement, the
licence contained in the schedule to this agreement which permits you to use
the Software.
|
| “Website” |
means www.magic5software.com and any of its
sub-domains used with our hosted solution, and includes the entire computing
hardware and software installation that is or supports the Website.
|
| “Software” |
means any of the software we offer for
sale on the Website and includes generally available updates and support
services so far as specified for the Software in our email.
|
| “Server Components” |
means any of the Software which does not run on End-User Devices.
|
| “Client Components” |
means any of the Software which runs on
End-User Devices.
|
| “Subscription Period” |
means the period for which you have paid for a
licence to use the Software, whether an initial period or on renewal.
|
| “Hosted” |
means the model whereby you have paid
for a licence to use the Software with Server Components hosted by us.
|
| “Trial” |
means the model whereby we grant you
a single licence to use the Software for trial and evaluation purposes, using
Server Components hosted by us.
|
2 Our contract with you
2.1 There
are two models for buying the Software:
2.1.1 You may
purchase the Software by installing the Server Components on your own network.
With this purchase you will have the requested number of end-user licences as
agreed in communication with us allowing all the users to login to the website
that is part of the Server Components and/or to use the Software. Subject to
the terms of this agreement and EULA, this purchase gives all of the users a
right to use the software indefinitely. You may purchase support and
maintenance services, which can be renewed annually, but the original licence
to use the software remains in force regardless of whether or not the support
and maintenance service is bought .
You, as one of the multiple
end-users, may use the Software either through the Client Components or through
the website interface of the Server Components. A single licence covers usage
of the Client Components, the website interface of the Server Components, or
both.
2.1.2 You have another option to purchase the required number of end-user licences, as may be
agreed in communication with us and to be used for an agreed time period without
the facility of receiving the Server Components but only receive the Client
Components. The Server Components will be hosted by us. There is a facility of trialling
which allows the usage of the Client Components and the website interface of
the hosted Server Components.
2.2 We
shall accept your order by e-mail confirmation. That is when our contract is
made. Our message will also confirm details of your purchase and tell you when
we shall dispatch your order or when your order will be available for download.
2.3 We may
change these terms from time to time. The terms that apply to you are those
posted here on the Website on the day you place your order or posted to you
along with the media containing the Software, as the case may be.
2.4 If in
future, you buy the Software from us under any arrangement which may involve online
payment via the Website, these terms still apply so far as they can be applied.
2.5 If we
owe you money as per this agreement, we will refund you the money as soon as
reasonably practicable but in any event no later than 7 days from the date it
falls due. The period of 7 days will run from the date of acceptance of your
claim by us.
3 Your account with us
3.1 You
agree that you have provided, and will continue to provide accurate, up to
date, and complete information which may be relevant in order for us to provide
you with the Software and other support services in addition to auditing the
use of the licences.
3.2 You are
responsible for maintaining the confidentiality of your account and password,
if any, and for preventing any unauthorised person from using the version of
Software that is licenced to you.
3.3 You
agree to accept responsibility for all activities that occur under your account
or password. You should tell us immediately if you believe some person has
accessed your account without your authority and also log in to your account
and change your password.
3.4 We
reserve the right to refuse you access to the Website.
4 Price, payment and Software provision
4.1 When
you buy the Software in any of the models as described in paragraph 2.1, you will
continue to be governed by this agreement in addition to the EULA, to the
extent as may be applicable.
4.2 We
will quote you the price via email which will depend upon the number of
end-users, the option availed in paragraph 2.1 and our support and maintenance
services etc. It is possible that the price may have increased from that
emailed to your or posted on the Website. If that happens, we will not provide
the Software until you have confirmed that you wish to order at the new price.
4.3 Support
and maintenance fees are billed in advance at the beginning of each year.
4.4 All payments
are non-refundable except as provided in this agreement.
4.5 The
Software will be provided by email or made available for you to download or via
physical delivery of the media..
4.6 You
agree that all sums as may be payable under this agreement will be paid via
bank transfer, information for which we will supply to you along with the
invoice from time to time. The payment should be made within 7 days from
delivery of our invoice.
4.7 You
will be entitled to avail the facilities under this agreement only if you make
the full payment of the invoices on or before the due date as mentioned therein.
4.8 For our
Hosted model you agree that we may bill your monthly subscription charges every
3 (three) months in advance. You may cancel your subscription at any time and
we will refund any payments made for whole, unused months.
4.9 We may
change the nature or provision of the Software at any time. We may tell you
about any such change by email or by posting details on the Website.
4.10 If we
change the nature or provision of the Software, you may replace / upgrade the
Software at such terms and conditions as will be available on the Website or as
we may communicate to you.
4.11 If a
change we make in the provision of your use of the Software, involves action on
your part, and you do not take that action, we are entitled to terminate this
agreement without notice that will disentitle you from any further services
from us.
4.12 You may
not share or allow others to use the Software in your name except as provided
in this agreement.
4.13 We may provide
updates to the Software from time to time during the Subscription Period as per
the terms of this agreement.
4.14 We will
do our best to provide email support for the Software at all times and to
maintain the Website so that you have constant use, but there will be times
when our support may be interrupted. Such interruption for reasonable periods
for maintenance or causes beyond our control is not a ground for repayment of
money you have paid. When we are aware of the likelihood of any extended down
time, we will tell you in advance.
5 Cancellation of order
5.1 If you
are a citizen of the European Union, and you bought the Software as a Consumer,
you may cancel your order for the Software at any time before the expiry of 7
working days from the date of order, not including the day you ordered.
5.2 Because
the Software is available to you, and can be copied by you on delivery, you
have no statutory right to cancellation once you have received the Software.
5.3 We
will refund your money on the ground as mentioned in paragraph 5.1 as soon as
reasonably possible and in any event within 30 days of cancellation of your
order.
5.4 This
paragraph does not affect your rights in the event that you have a genuine and
valid complaint about the way we have provided the services to you.
6 Foreign taxes, duties and import restrictions
6.1 If you
are not in the UK, we have no knowledge of, and no responsibility for, the laws
in your country.
6.2 You
are responsible for purchasing Software which you are lawfully able to import
and for the payment of import duties and taxes of any kind levied in your
country.
7 Dissatisfaction with the Software
7.1 Our
most important task is to ensure your absolute satisfaction. We will always
strive to reach that target. However, we acknowledge that mistakes are made
occasionally. This paragraph covers that possibility. If you are not wholly
satisfied with the Software, please tell us at the earliest opportunity:
7.1.1 exactly why you think we have failed;
7.1.2 the date, if relevant, of the failure;
7.1.3 when and how you discovered the failure;
7.1.4 the result of the failure;
7.1.5 your suggestion as to action we should take to resolve the situation and restore your faith in us.
7.2 The procedure for complaints about our Software is as follows : contact us via the
e-mail address support@magic5software.com,
including all details described in 7.1. If you do not follow this procedure,
we may be unable to identify you and the Software you have bought.
8 Disclaimers
8.1 We or
our Content suppliers may make improvements or changes to the Website, the
Content, or to any of the software that we may offer for sale, at any time and
without advance notice.
8.2 You
are advised that Content may include technical inaccuracies or typographical
errors. This is inevitable in any large website. We would be grateful if you
bring to our immediate attention, any that you find.
8.3 We
give no warranty and make no representation, express or implied, as to:
8.3.1 the adequacy or appropriateness of the Software for your purpose;
8.3.2 any implied
warranty or condition as to merchantability or fitness of the Software for a
particular purpose other than that for which the Software is commonly used;
8.3.3 the use of, or results of the use of the Software or its compatibility with your equipment,
software or telecommunications connection;
8.3.4 compliance with any law;
8.3.5 non-infringement of any right.
8.4 The Website contains links to other Internet websites outside our power and
control. You acknowledge and agree that we shall not be liable in any way for
the Content of any such linked website, nor for any loss or damage arising from
your use of any such website.
8.5 We are
not liable in any circumstances for special, indirect or consequential loss or
any damages whatsoever resulting from loss of use, loss of data or loss of
revenues or profits, whether in an action of contract, negligence or otherwise,
arising out of or in connection with your use of the Website or the purchase of
our Software.
In any event, including the
event that any term or condition or obligation on our part (“Implied Term”) is
implied into these conditions by law, then our liability is limited to the
maximum extent permitted by law, to the value of the Software you have
purchased.
9 Data Backup
As part of our
service to you, we will make regular backups of the databases containing data
collected using our Software in either the Hosted or Trial models. Further to
the disclaimer in 8.5, we advise you to make your own independent backup copies
of any of your data.
10 Confidential Information and Intellectual Property Rights
10.1 You
agree to keep safe the Confidential Information and not to disclose or make
available for disclosure to any person, any part of it.
10.2 We will
defend the intellectual property rights in connection with our Software and the
Website, including copyright in the Content whether provided by us or by any
other content provider (including copyright in: text, graphics, logos, icons,
images, audio clips, digital downloads, data, and Software).
10.3 We also
claim copyright in the designs and compilation of the Software in addition to
all Content of the Website. Title, ownership rights, and shall remain the sole
property of us and / or the other content provider. We will strongly protect
those rights in all countries.
10.4 Except
as set out below, you may not copy, modify, publish, transmit, transfer or
sell, reproduce, create derivative works from, distribute, perform, display, or
in any way exploit any of the Content, in whole or in part.
10.5 You may
not use our name or logos or trademarks or any other Content on any website of
yours or that of any other person.
10.6 Subject
to the other terms of this agreement, you may download or copy Content only for
your own personal use, provided that you maintain all copyright and other
notices contained in it. You may not store electronically any significant
portion of any Content.
11 The Licence
11.1 The EULA
as attached in Schedule to this agreement is in addition to and not in
derogation of this agreement. We grant to you a limited licence to use the
Software for your personal or business use. The licence is non-exclusive and
non-transferable.
11.2 The
licence will depend upon the option you have availed as per paragraph 2.1 above
and the extent of facilities such as installation of Server Components and use of the website will depend upon the relevant option.
You undertake that:
11.2.1 If you
have bought a single-user licence, you may install and use it on not more than
one end-user device used exclusively by one person;
11.2.2 If you
have bought a multi-user licence, you may install and use it on the number of
End-User Devices for which you have bought a licence;
11.2.3 You will
ensure that no more than the licenced number of users shall use the Software as
per the terms of the availed option.
11.2.4 The
physical devices used will also be limited to the licenced number.
11.3 You may not copy the Software, except for the purpose of system maintenance, nor may
you transfer it nor allow any other person to use it.
12 System Security
12.1 You
agree that you will not, and will not allow any other person to violate or
attempt to violate any aspect of the security of the Software or that of the
Website.
12.2 You may
not use any software tool for the purpose of extracting data from the Website.
12.3 You
understand that any such violation is unlawful in many jurisdictions and that
any contravention of law may result in criminal prosecution.
13 Acceptable use Policy
13.1 As a
condition of your use of the Website, you agree to comply with these
provisions:
13.2 You will
not use or allow anyone else to use the Website to post or otherwise publish:
13.2.1 copyright works;
13.2.2 commercial audio, video or music files;
13.2.3 any material which violates the law of any established jurisdiction;
13.2.4 unlicenced software;
13.2.5 software which assists in or promotes: emulators, phishing, hacking, password cracking,
IP spoofing;
13.2.6 links to any of the material specified in this paragraph;
13.2.7 pornographic material;
13.2.8 any material promoting discrimination or animosity to any person on grounds of
gender, race or colour.
13.3 You will
not use the Software for spamming. Spamming includes, but is not limited to:
13.3.1 the bulk
sending of unsolicited messages, or the sending of unsolicited emails which
provoke complaints from recipients;
13.3.2 the sending of junk mail;
13.3.3 the use of distribution lists that include people who have not given specific
permission to be included in such distribution process;
13.3.4 excessive and repeated posting off-topic messages to newsgroups;
13.3.5 excessive and repeated cross-posting;
13.3.6 e-mail harassment of another Internet user, including but not limited to, transmitting
any threatening, libellous or obscene material, or material of any nature which
could be deemed to be offensive;
13.3.7 the e-mailing of age inappropriate communications or content to anyone under the age
of 18.
14 Indemnity
You agree to
indemnify us for any loss due to non-compliance of this agreement by you or
with your connivance in addition to any claim or demand, including reasonable
lawyers’ fees, made by any third party due to or arising in any way out of your
use of the Software or the Website, your posting any material, or the
infringement by you, or by any other person using your computer, of any
intellectual property or other right of any person.
15 Miscellaneous provisions
15.1 When we
communicate with you we do so by email. You agree that email communications
are contractually binding in the same way as properly signed and dated paper
sent by post.
15.2 Where we
provide Software or services without specific charge to you, then it (or they)
is deemed to be provided free of charge, and not to be associated with any
other goods or service for which a charge is made. Accordingly, there is no
contractual nor other obligation upon us in respect of those services.
15.3 Nothing
in this agreement or on the Website shall confer on any third party any benefit
under the provisions of the Contracts (Rights of Third Parties) Act 1999.
15.4 If any
of these terms is at any time held by any jurisdiction to be void, invalid or
unenforceable, then it shall be treated as changed or reduced, only to the
extent minimally necessary to bring it within the laws of that jurisdiction and
to prevent it from being void and it shall be binding in that changed or
reduced form. Subject to that, each provision shall be interpreted as severable
and shall not in any way affect any other of these terms.
15.5 No
waiver by us, in exercising any right, power or provision in this agreement
shall operate as a waiver of any other right or of that same right at a future
time; nor shall any delay in exercise of any power or right be interpreted as a
waiver.
15.6 In the
event of a dispute arising out of or in connection with these terms or any
contract between you and us, then you agree to attempt to settle the dispute by
engaging in good faith with us in a process of mediation before commencing
arbitration or litigation.
15.7 We are
not liable for any breach of our obligations resulting from causes beyond our
reasonable control including strikes of our own employees.
15.8 This
Agreement shall be governed by and construed in accordance with the law of
England and the parties agree to submit to the exclusive jurisdiction of
English courts except that we shall have the right to sue to recover any money
in any jurisdiction in which you are operating or have assets. This agreement
shall not be governed by the United Nations Convention on Contracts for the
International Sale of Goods, the application of which is hereby expressly
excluded.
Schedule:
END USER LICENCE AGREEMENT
IMPORTANT:
THIS SOFTWARE END USER LICENCE
AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN
INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN
ENTITY) AND CADENCE COMPUTING LTD. READ IT CAREFULLY BEFORE COMPLETING THE
INSTALLATION PROCESS AND USING MAGIC5 (THE SOFTWARE). IT PROVIDES A LICENCE TO
USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS.
BY SELECTING THE DOWNLOAD OR
INSTALL BUTTON AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF
THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF
YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE.
Licence Grants:
You may install and use the
Software on one End-User Device and/or you may access the website interface of
the Server Components. A licence for the Software may not be shared, installed
or used concurrently on different End-User Devices.
You agree that Cadence Computing
Ltd. may audit your use of the Software for compliance with these terms at any
time, upon reasonable notice. In the event that such audit reveals any use of
the Software by you other than in full compliance with the terms of this
Agreement, you shall reimburse Cadence Computing Ltd. for all reasonable
expenses related to such audit in addition to any other liabilities that it may
incur as a result of such non-compliance. Your licence rights under this EULA
are non-exclusive. Certain rights are not granted under this Agreement, but may
be available under a separate agreement.
Licence Restrictions:
You may not make or distribute
copies of the Software, or electronically transfer the Software from one
computer to another or over a network. You may not alter, merge, modify, adapt
or translate the Software, or decompile, reverse engineer, disassemble, or
otherwise reduce the Software to a human-perceivable form. You may not sell,
rent, lease, or sublicence the Software.
You may not modify the Software or
create derivative works based upon the Software.
In the event that you fail to
comply with this EULA, Cadence Computing Ltd may terminate the licence and you
must destroy all copies of the Software (with all other rights of both parties
and all other provisions of this EULA surviving any such termination).
You shall not use the Software to
develop any software or other technology having the same primary function as
the Software, including but not limited to using the Software in any
development or test procedure that seeks to develop like software or other
technology, or to determine if such software or other technology performs in a
similar manner as the Software.
Ownership:
The foregoing licence gives you
limited licence to use the Software.
Cadence Computing Ltd and its
suppliers retain all right, title and interest, including all copyright and
intellectual property rights, in and to, the Software and all copies thereof.