Fisher-Marriott Software licence
PLEASE READ CAREFULLY BEFORE INSTALLING ANY SOFTWARE FROM
FISHER-MARRIOTT SOFTWARE:
This licence agreement (Licence) is a legal agreement
between you (Licensee or you) and Fisher-Marriott Software (Licensor, us or we)
for:
1. Our
computer software and any associated media (Software); and
2. Any
related printed materials and online OR electronic documents (Documents).
We license use of the Software and Documents to you on the
basis of this Licence. We do not sell the Software or Documents to you. We
remain the owners of the Software and Documents at all times.
IMPORTANT NOTICE TO ALL USERS:
1. BY
CLICKING ON THE "ACCEPT" BUTTON YOU AGREE TO THE TERMS OF THIS
LICENCE WHICH WILL BIND YOU. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR,
LIMITATIONS ON LIABILITY IN LIMITATION OF
LIABILITY IF YOU ARE AN EDUCATIONAL ESTABLISHMENT OR BUSINESS USER AND LIMITATION OF LIABILITY IF YOU ARE A
CONSUMER USER.
2. IF
YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENSE THE SOFTWARE
AND DOCUMENTS TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW BY
CLICKING ON THE "CANCEL" BUTTON.
You
should print a copy of this Licence for future reference.
1.
GRANT AND SCOPE OF LICENCE
1.1
In consideration of payment by you of the agreed licence fee and you
agreeing to abide by the terms of this Licence, we hereby grant to you a
non-exclusive, non-transferable licence to use the Software and the Documents
on the terms of this Licence.
1.2
Permitted use
You may:
(a)
download, install and use the Software for your personal purposes (if
you are a consumer) or your internal educational/business purposes (if you are
an educational establishment or business) only:
(i)
on one central processing unit (CPU) if the Licence is a single-user
licence or the Software is for standalone or single use; or
(ii)
if the Licence is a multi-user or network licence, by the number of
servers and concurrent users agreed between you and us;
(b)
provided you comply with the provisions in RESTRICTIONS,
make copies of the Software for back-up purposes only; and
(c)
receive and use any free supplementary software code or update of the
Software incorporating "patches" and corrections of errors as may be
provided by us from time to time; and
(d)
use any Documents in support of the permitted use
and make copies of the Documents as are reasonably necessary for its lawful
use.
2
RESTRICTIONS
2.1
Except as expressly set out in this Licence or as permitted by any local
law, you undertake:
(a)
not to copy the Software or Documents 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;
(b)
not to rent, lease, sub-license, loan, translate, merge, adapt, vary or
modify the Software or Documents;
(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, decompile, reverse-engineer or create derivative
works based on the whole or any part of the Software nor attempt to do any such
thing 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:
(i)
is used only for the purpose of achieving inter-operability of the
Software with another software program; and
(ii)
is not unnecessarily disclosed or communicated without our prior written
consent to any third party; and
(iii) is
not used to create any software which is substantially similar to the Software;
(iv) 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;
(v)
to include our copyright notice on all entire and partial copies you
make of the Software on any medium;
(vi) not
to provide or otherwise make available the Software in whole or in part
(including but not limited to program listings, object and source program
listings, object code and source code), in any form to any person without prior
written consent from us; and
(vii) to
comply with all applicable technology control or export laws and regulations.
3
INTELLECTUAL PROPERTY RIGHTS
3.1
You acknowledge that all intellectual property rights in the Software
and the Documents anywhere in the world belong to us, that rights in the
Software are licensed (not sold) to you, and that you have no rights in, or to,
the Software or the Documents 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.
4
LIMITED WARRANTY
4.1
We warrant that:
(a)
the Software will, when properly used and on an operating system for
which it was designed, perform substantially in accordance with the functions
described in the Documents; and
(b)
that the Documents correctly describe the operation of the Software in
all material respects,
for a period of 90 days from the
date of installation of the Software (Warranty Period).
4.2
If, within the Warranty Period, you notify us in writing of any defect
or fault in the Software as a result of which it fails to perform substantially
in accordance with the Documents, we will, at our sole option, either repair or
replace the Software, provided that you make available all the information that
may be necessary to help us to remedy the defect or fault, including sufficient
information to enable us to recreate the defect or fault.
4.3
The warranty does not apply:
(a)
if the defect or fault in the Software results from you having altered
or modified the Software; or
(b)
if the defect or fault in the Software results from you having used the
Software in breach of the terms of this Licence
4.4
If you are a consumer, this warranty is in addition to your legal rights
in relation to Software that is faulty or not as described. Advice about your
legal rights is available from your local Citizens' Advice Bureau or Trading
Standards office.
5
LIMITATION OF LIABILITY IF YOU ARE AN EDUCATIONAL ESTABLISHMENT OR
BUSINESS USER
5.1
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 Documents
meet your requirements.
5.2
We supply the Software and Documents for internal use by you, and you
agree not to use the Software or Documents for any re-sale purposes.
5.3
We shall not in any circumstances whatever be liable to you, whether in
contract, tort (including negligence), breach of statutory duty, or otherwise,
arising under or in connection with the Licence for:
(a)
loss of opportunity, goodwill or reputation;
(b)
loss of profits, sales or revenue;
(c)
interruption;
(d)
loss of anticipated savings;
(e)
loss or corruption of data or information; or
(f)
any indirect or consequential loss or damage.
5.4
Other than the losses set out above (for which we are not liable), our
maximum aggregate liability under or in connection with this Licence whether in
contract, tort (including negligence) or otherwise, shall in all circumstances
be limited to a sum equal to the Licence Fee. This maximum cap does not apply
to the following limitations and exclusions.
5.5
Nothing in this Licence shall limit or exclude our liability for:
(a)
death or personal injury resulting from our negligence;
(b)
fraud or fraudulent misrepresentation;
(c)
any other liability that cannot be excluded or limited by English law.
5.6
This Licence sets out the full extent of our obligations and liabilities
in respect of the supply of the Software and Documents. Except as expressly
stated in this Licence, there are no conditions, warranties, representations or
other terms, express or implied, that are binding on us. Any condition,
warranty, representation or other term concerning the supply of the Software
and Documents which might otherwise be implied into, or incorporated in, this
Licence whether by statute, common law or otherwise, is excluded to the fullest
extent permitted by law.
6
LIMITATION OF LIABILITY IF YOU ARE A CONSUMER USER
6.1
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 Documents
meet your requirements.
6.2
If you are a consumer, we only supply the Software and Documents for
domestic and private use. You agree not to use the Software and Documents for
any commercial, business or re-sale purposes, and we have no liability to you
for any loss of profit, loss of business, business interruption, or loss of
business opportunity.
6.3
We are only responsible for loss or damage you suffer that is a
foreseeable result of our breach of this Licence or our negligence up to the
amount specified below, but we are not responsible for any loss or damage that
is not foreseeable. Loss or damage is foreseeable if they were an obvious
consequence of our breach or if they were contemplated by you and us at the
time we granted you the Licence.
6.4
Our maximum aggregate liability under or in connection with this Licence
whether in contract, tort (including negligence) or otherwise, shall in all
circumstances be limited to a sum equal to the Licence Fee. This does not apply
to the types of loss set out in the following limitations and exclusions.
6.5
Nothing in this Licence shall limit or exclude our liability for:
(a)
death or personal injury resulting from our negligence;
(b)
fraud or fraudulent misrepresentation; or
(c)
any other liability that cannot be excluded or limited by English law.
7
TERMINATION
7.1
We 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 of written notice
requiring you to do so.
7.2
Upon termination for any reason:
(a)
all rights granted to you under this Licence shall cease;
(b)
you must immediately cease all activities authorised by this Licence;
and
(c)
you must immediately pay to us any sums due to us under this Licence;
and
(d)
you must immediately delete or remove the Software from all computer
equipment in your possession, and immediately destroy or return to us (at our
option) all copies of the Software and Documents then in your possession,
custody or control and, in the case of destruction, certify to us that you have
done so.
8
COMMUNICATIONS BETWEEN US
8.1
If you are a consumer, if you wish to contact us in writing, or if any
condition in this Licence requires you to give us notice in writing, you can
send this to us at Fisher-Marriott Software using the contact details as
specified on our website (www.fishermarriott.com). We will confirm receipt of
this by contacting you in writing, normally by e-mail.
8.2
If we have to contact you or give you notice in writing, we will do so
by e-mail or by post to the address you provide to us in your order for the
Software.
8.3
If you are an educational or business customer, please note that any
notice given by you to us, or by us to you, will be deemed received and
properly served immediately when posted on our website, 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.
9
EVENTS OUTSIDE OUR CONTROL
9.1
We will not be liable or responsible for any failure to perform, or
delay in performance of, any of our obligations under this Licence that is
caused by an Event Outside Our Control. An Event Outside Our Control is defined
below.
9.2
An Event Outside Our Control means any act or event beyond our
reasonable control, including without limitation failure of public or private
telecommunications networks.
9.3
If an Event Outside Our Control takes place that affects the performance
of our obligations under this Licence:
(a)
our obligations under this Licence will be suspended and the time for
performance of our obligations will be extended for the duration of the Event
Outside Our Control; and
(b)
we will use our reasonable endeavours to find a solution by which our
obligations under this Licence may be performed despite the Event Outside Our
Control.
10 OTHER
IMPORTANT TERMS
10.1
We may transfer our rights and obligations under this Licence to another
organisation, but this will not affect your rights or our obligations under
this Licence.
10.2
You may only transfer your rights or your obligations under this Licence
to another person if we agree in writing.
10.3
If you are an educational or business customer, this Licence and any
document expressly referred to in it constitutes the entire agreement between
us and supersedes and extinguishes all previous agreements, promises,
assurances, warranties, representations and understandings between us, whether
written or oral, relating to its subject matter. You agree that you shall have
no remedies in respect of any statement, representation, assurance or warranty
(whether made innocently or negligently) that is not set out in this Licence or
any document expressly referred to in it. You agree that you shall have no
claim for innocent or negligent misrepresentation or negligent misstatement
based on any statement in this in this Licence or any document expressly
referred to in it.
10.4
If we fail to insist that you perform any of your obligations under this
Licence, or if we do not enforce our rights against you, or if we delay in
doing so, that will not mean that we have waived our rights against you and
will not mean that you do not have to comply with those obligations. If we do
waive a default by you, we will only do so in writing, and that will not mean
that we will automatically waive any later default by you.
10.5
Each of the conditions of this Licence operates separately. If any court
or competent authority decides that any of them are unlawful or unenforceable,
the remaining conditions will remain in full force and effect.
10.6
If you are a consumer, please note that this Licence, its subject matter
and its formation, are governed by English law. You and we both agree to that
the courts of England and Wales will have non-exclusive jurisdiction. However,
if you are a resident of Northern Ireland you may also bring proceedings in
Northern Ireland, and if you are resident of Scotland, you may also bring
proceedings in Scotland.
10.7
If you are an educational or business customer, this Licence, its
subject matter and its formation (and any non-contractual disputes or claims)
are governed by English law. We both irrevocably agree to the exclusive jurisdiction
of the courts of England and Wales.