Terms and conditions

Trading Terms and Conditions of Cadence Computing Ltd

These terms and conditions regulate the business relationship between you and us.  By using the Website in any way, or by buying from us, you agree to be bound by them.

No person under the age of 18 years may purchase the Software.  We look forward to seeing you again when you are over 18.

We are : Cadence Computing Ltd, registered as a company in England and Wales under the company number 3629838.
Our address : 199 Wells Road Bristol BS4 2DB UK
Tel No : +44 (0)117 971 2050
E-mail : termsandconditions@magic5software.com
You are : a user of our web site or our customer or a user if you acquired the licence to the Software as one of the end-users under the terms of this agreement.

The terms and conditions

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.