Preamble
IMPORTANT! THIS IS THE LICENCE AGREEMENT THAT YOU ARE REQUIRED TO ACCEPT BEFORE INSTALLING AND USING INTERFOCUS IMAGING LTD SOFTWARE. CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT BEFORE PROCEEDING WITH THE DOWNLOADING AND/OR INSTALLATION OF THIS SOFTWARE PRODUCT. YOU ARE NOT PERMITTED TO DOWNLOAD AND/OR INSTALL THIS SOFTWARE PRODUCT UNTIL YOU HAVE AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT AND CHOOSE NOT TO INSTALL THIS SOFTWARE PRODUCT, TO OBTAIN A REFUND OF THE AMOUNT PAID FOR THIS LICENCE, PROMPTLY RETURN THIS SOFTWARE PRODUCT IN UNMODIFIED FORM TOILTHER WITH WRITTEN CERTIFICATION THAT THE ORIGINAL SOFTWARE PRODUCT AND ANY COPIES MADE HAVE BEEN RETURNED, TO EITHER INTERFOCUS IMAGING LTD OR THE AUTHORIZED DISTRIBUTOR WHO PROVIDED THE SOFTWARE PRODUCT TO YOU, AS APPLICABLE, NO LATER THAN 14 DAYS FROM YOUR RECEIPT OF THE SOFTWARE PRODUCT. BY ACCEPTING THIS LICENCE AGREEMENT YOU ALSO REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT ON BEHALF OF YOUR EMPLOYER.
THIS AGREEMENT IS ENTERED INTO BETWEEN INTERFOCUS IMAGING LTD a company registered in England and Wales number 5638265 registered office Pentagon Business Park, Cambridge Road, Linton, CB21 4NN, England [“IIL”] AND YOU AS END USER OF THE SOFTWARE PRODUCT ("END USER")
1. The Software Product
The subject of this Licence is the IIL software product in which this Licence is embedded and any related updates provided to END USER, including computer software and, where applicable, associated media, printed materials and online or electronic documentation ("Software Product").
2. Evaluation Licence Grant
If END USER has been provided with a copy of the Software Product for evaluation purposes, END USER is hereby granted by IIL (who is licensed to sub-license to End Users ) subject to the terms and conditions of this Agreement (excluding sections 3 and 7), a non-exclusive, non-transferable evaluation Licence to install and use the Software Product either:
(a) On a single computer only (and not on a network or server) or,
(b) On a single designated server being a single computer which provides shared services to multiple single computers linked to the server, subject to the number of concurrent users as agreed to by IIL in writing,
as applicable, in each case where such single computer or server is owned, leased or otherwise substantially controlled by END USER, for a term of 28 days from the date of installation of the Software Product.
This evaluation Licence permits END USER to use the Software Product strictly in a research environment for the sole purpose of evaluating the suitability of the Software Product to END USER'S internal, end-use purposes (excluding the commercialisation of information technology products and/or services). THIS EVALUATION LICENCE DOES NOT PERMIT END USER TO MAKE ANY COPIES OF THE SOFTWARE PRODUCT FOR ANY PURPOSE WHATSOEVER. THE SOFTWARE PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, DURING THE EVALUATION PERIOD. If the Software Product is not considered to be suitable, END USER shall immediately un-install the Software Product and destroy all copies of the Software Product in its possession or under its control. TO THE EXTENT THAT THE TERMS AND CONDITIONS OF THESE EVALUATION RIGHTS AND OBLIGATIONS CONFLICT WITH THE OTHER TERMS AND CONDITIONS OF THIS AGREEMENT, THE EVALUATION RIGHTS AND OBLIGATIONS SHALL GOVERN THE RELATIONSHIP OF THE PARTIES RELATING TO THE EVALUATION LICENCE PROVIDED THAT WHERE IT IS PERMISSABLE TO DO SO ALL STATUTORY IMPOSED OR IMPLIED TERMS OF WARRANTY OR CONDITION AS TO FITNESS FOR PURPOSE AND QUALITY ARE EXCLUDED BUT PROVIDED FURTHER THAT WHERE (AS IS THE CASE IN COUNTRIES COMPRISING THE EUROPEAN FREE TRADE AREA) IT IS NOT POSSIBLE IN ALL CIRCUMSTANCES TO EXCLUDE SUCH OBLIGATIONS WARRANTIES OR CONDITIONS (FOR EXAMPLE WHERE PERSONAL INJURY OR DEATH RESULTS) THEN SUCH IMPLIED TERMS ARE INCORPORATED HEREIN BUT NOT FURTHER OR OTHERWISE AND CLAUSES 7 & 8 BELOW SHALL BE CONSTRUED ACCORDINGLY.
3. Standard Licence Grant
If END USER has been provided with a copy of the Software Product for purposes other than evaluation, END USER is hereby granted, by IIL ( as sub-Licensee aforesaid) upon the following terms and conditions including payment of any applicable Licence fee, a non-exclusive, non-transferable Licence, for its internal, end-use purposes only (excluding the commercialisation of information technology products and/or services), in the ordinary course of END USER'S business, to:
(a) If a single user Licence is purchased or otherwise agreed to, install and use the Software Product on a single computer only (and not on a network or a server),
(b) If a server Licence is purchased or otherwise agreed to, install and use the Software Product on a single designated server being a single computer which provides shared services to multiple single computers linked to the server, subject to the number of concurrent users designated in the applicable purchase order accepted by IIL,
in each case where such single computer or server is owned, leased or otherwise substantially controlled by END USER.
If END USER desires to use this Software Product on more than one single computer, an IIL server Licence must be obtained from IIL or a copy of the Software Product must be licensed from IIL (through the Distributor’s sub-licence if the sale is through an authorised Distributor) for each single computer upon which the Software Product is used.
END USER is permitted to make one copy of this Software Product into machine readable form for backup purposes only however END USER may not copy the printed materials that are part of this Software Product. END USER must mark the backup copy media of the Software Product as "backup". The backup copy of the Software Product is subject to the provisions of this Agreement, and all titles, trademarks, copyright notices and other legends shall be reproduced in the backup copy.
4. Licence Restrictions
THE SOFTWARE PRODUCT WHICH IS THE SUBJECT OF THIS AGREEMENT IS LICENSED TO END USER, NOT SOLD. END USER MAY NOT USE OR COPY THE SOFTWARE PRODUCT, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENCE. END USER MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE SOFTWARE PRODUCT OR OTHERWISE ATTEMPT TO (A) DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY SOFTWARE PROTECTION MECHANISMS IN THE SOFTWARE PRODUCT INCLUDING, WITHOUT LIMITATION, ANY SUCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE SOFTWARE PRODUCT OR (B) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATION FORM OF THE SOFTWARE PRODUCT. END USER WILL AT ALL TIMES, INCLUDING DURING AND AFTER THE TERM OF THIS LICENCE, KEEP THE SOFTWARE PRODUCT CONFIDENTIAL. END USER SHALL COMPLY WITH ALL APPLICABLE EXPORT LAWS AND REGULATIONS.
The Software Product is provided with Restricted Rights. Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Imaging Research Inc.,
500 Glenridge Avenue
,
St. Catharines
,
Ontario
Canada
L2S 3A1
.
5. Ownership
The Software Product is protected by copyright and is proprietary and confidential to IIL. All right, title and interest in and to the Software Product (including associated intellectual property rights) are and will remain vested in IIL or IIL's affiliated companies or superior licensor or authorized sub-licensees. These rights are protected by national and other laws and international treaties. END USER acknowledges that no rights, licence or interest to any IIL trademarks or trade marks of any superior licensor are granted hereunder.
6. Term of Licence
This Licence shall be in effect from the time END USER installs the Software Product, thereby accepting the terms and conditions contained herein, or otherwise expressly accepts the terms and conditions of this Licence, and shall remain in effect until terminated. In the case of an evaluation Licence, the Licence shall terminate after 28 days have elapsed. This Licence will otherwise terminate upon the conditions set forth in this Agreement or if END USER fails to comply with any term or condition of this Agreement including failure to pay any applicable Licence fee. END USER agrees upon termination of this Agreement for any reason to immediately un-install the Software Product and destroy all copies of the Software Product in its possession and/or under its control.
7. Limited Warranty
IIL warrant that, for a period of ninety (90) days from the date of delivery of the Software Product to END USER, the Software Product will perform in all material respects in accordance with the accompanying user manual, and the media on which the Software Product resides will be free from defects in materials and workmanship under normal use. IIL DOES NOT WARRANTTHAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET END USER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED. END USER MUST NOTIFY IIL IN WRITING OF ANY LIMITED WARRANTY CLAIMS WITHIN THE LIMITED WARRANTY PERIOD.
8. Limitation of Liability
IIL’S ENTIRE AGGREGATE LIABILITY AND END USER'S EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTY PROVISION SHALL BE, AT IIL'S OPTION, EITHER (A) RETURN OF THE PRICE PAID FOR THE SOFTWARE PRODUCT, OR (B) REPAIR OR REPLACEMENT OF THE PORTIONS OF THE SOFTWARE PRODUCT THAT DO NOT COMPLY WITH IIL'S LIMITED WARRANTY. THIS LIMITED WARRANTY IS VOID AND IIL SHALL NOT HAVE ANY LIABILITY AT ALL IF FAILURE OF THE SOFTWARE PRODUCT TO COMPLY WITH IIL'S LIMITED WARRANTY HAS RESULTED FROM: (A) FAILURE TO USE THE SOFTWARE PRODUCT IN ACCORDANCE WITH THE THEN CURRENT USER MANUAL SUPLIED BY ILOR THIS AGREEMENT; (B) ACCIDENT, ABUSE, OR MISAPPLICATION; (C) PRODUCTS OR EQUIPMENT NOT SPECIFIED BY IIL AS BEING COMPATIBLE WITH THE SOFTWARE PRODUCT; (D) IF END USER HAS NOT NOTIFIED IIL OR THE DISTRIBUTOR IN WRITING OF THE DEFECT WITHIN THE ABOVE WARRANTY PERIOD; (E) FAILURE TO INSTALL ANY UPDATE PROVIDED BY IIL OR THE DISTRIBUTOR; OR (F) ALLEGED ERRORS OR DEFECTS WHICH ARE NOT REPRODUCIBLE BY IIL.
EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED ABOVE IN THIS CLAUSE AND IN CLAUSE 2, THE SOFTWARE PRODUCT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL OTHER WARRANTIES OR CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE AGGREGATE LIABILITY OF IIL AND/OR THE DISTRIBUTOR, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IS LIMITED TO DIRECT MONEY DAMAGES NOT TO EXCEED THE TOTAL OF PRIOR PAYMENTS MADE BY END USER TO IIL AND/OR TO THEDISTRIBUTOR FOR THE SOFTWARE PRODUCT, OR, AT IIL'S DISCRETION, TO REPLACEMENT OF THE SOFTWARE PRODUCT OR EQUITABLE ADJUSTMENT OF THE PAYMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL ILAND/OR THE DISTRIBUTOR BE LIABLE UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF IIL AND/OR ANY DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS REVENUE, OTHER ECONOMIC LOSS OR ANY LOSS OF RECORDED DATA ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES.
9. General Provisions
The limitations of liability and ownership rights of IIL contained herein and END USER's obligations following termination of this Agreement shall survive the termination of this Agreement for any reason.
END USER may not sublicense, assign, share, pledge, rent or transfer any of its rights under this Agreement in relation to the Software Product or any portion thereof including documentation.
No amendments or modifications may be made to this Agreement except in writing signed by both parties.
If one or more provisions of this Agreement are found to be invalid or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and merges all prior communications except that a "hard-copy" form of licensing agreement relating to the Software Product previously agreed to in writing by IIL (1) and END USER (2) shall supercede and govern in the event of any conflicting provisions.
This Agreement shall be governed by the laws of
England
and
Wales
The parties (SO FAR AS IS LAWFUL) expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods and (as previously stated) all statutory imposed or implied terms of warranty or condition as to fitness for purpose and quality are excluded but provided further that where (as is the case in countries comprising the European Free Trade Area) it is not possible in all circumstances to exclude such obligations warranties or conditions (for example where personal injury or death results) then such implied terms are incorporated herein but not further or otherwise and the terms of this licence shall be construed accordingly. Further for the purpose of sales within the
United States of America
or where the following regulations have application there is excluded from this licence any state Uniform Computer Information Transactions Act or similar federal, provincial or state laws or regulations.
END OF SOFTWARE LICENCE AGREEMENT |
