This licence agreement ("Licence") is a legal agreement between you ("Licensee" or "you") and DeltaXML Ltd, registered in England and Wales with company number 02528681 with registered address Malvern Hills Science Park, Geraldine Road, Malvern, Worcestershire, WR14 3SZ ("Licensor", "us" or "we") for:
the software product identified as the "Licensed Product" in the licence key; and
(if applicable), electronic documentation, XML files, XSLT stylesheets, associated material and any updates ("Documentation"),
together the "Software".
We licence use of the Software to you on the basis of this Licence. We do not sell the Software to you. We remain the owners of the Software at all times.
IMPORTANT NOTICE TO ALL USERS:
BY CLICKING ON THE "ACCEPT" BUTTON OR BY DOWNLOADING OR USING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING THE LICENSEE TO THIS LICENCE.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENCE DO NOT DOWNLOAD OR USE THE SOFTWARE.
You should print a copy of this Licence for future reference.
1.1 In consideration of 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 on the terms of this Licence.
1.2 If the Licence is an evaluation licence then your right to Use the Software is for a limited non-renewable time period and is for internal evaluation, demonstration and test purposes only.
1.3 The Licence permits you to "Use" (as hereinafter defined) the Software only accordance with any limitations in the licence key and in accordance with the Licence Type as follows:
1.3.1 Named User Licence: "Named User Licence" means a Licence Type with the right for one individual person (the "Designated User") to Use the Software on one computing device (the "System") with a maximum number of CPUs as specified in the licence key, including the right to copy the Software to another System such that the Designated User is using no more than one copy simultaneously. Each core of a multiple-core CPU shall be deemed to be one CPU. The Named User Licence may be re-assigned to another Designated User, within the same company or legal entity, at any time as long as the Software is no longer being used by the previous Designated User. The Software may not be used to provide an automated service to another computing device or to any person other than the Designated User.
1.3.2 Server Licence: "Server Licence" means a Licence Type with the right to Use the Software on one computing device (the "System") which is a network server identified in the licence key (the "Designated Server") with a maximum number of CPUs as specified in the licence key. Each core of a multiple-core CPU shall be deemed to be one CPU. Any number of persons may access the Software running on the System provided each person is an employee of Licensee. The Server Licence may be re-assigned to another Designated Server, within the same company or legal entity, at any time as long as the Software is no longer used on the previous Designated Server.
1.3.3 Concurrent Licence: "Concurrent Licence" means a Licence Type with the right to Use the Software only under the control of a licence server which controls access to the Software and subject to any terms and conditions specified in the sales order or invoice.
1.3.4 Bespoke Licence: "Bespoke Licence" means a Licence Type with the right for a number of users as specified in the sales order or invoice that is referenced in the licence key ("Designated Users") to Use the Software on personal computers or network servers (the "System"), subject to any terms and conditions specified in the sales order or invoice.
1.3.5 Enterprise Licence: "Enterprise Licence" means a Licence Type which has a separate written and signed licence agreement which when applicable has precedence over the terms and conditions of this Licence.
1.3.6 Redistribution Licence: "Redistribution Licence" means a Licence Type which has a separate written and signed licence agreement which when applicable has precedence over the terms and conditions of this Licence.
1.4 In this Licence "Use" shall mean and include utilisation of the Software by copying, transmitting or loading the same into the memory of the System for the processing of the instructions or statements contained in such Software. The Software may be copied only for back-up or disaster recovery purposes and provided each copy contains the same copyright information as the original.
1.5 The Software is not free or shareware. The Software is licensed to you, not sold. The Licence fee is as quoted and is payable by a method specified on our website.
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
not to copy the Software except where such copying is incidental to the normal operation of the Software (and as specified in clause 1 above), or where it is necessary for the purpose of back-up or operational security;
not to disassemble, decompile or reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing to the extent that (by virtue of section 296A of the Copyright Design 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:
is used only for the purpose of achieving inter-operability of the Software with another software program; and
is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
is not used to create any software which is substantially similar to the Software;
not to translate, modify, lease, rent, loan, redistribute, sub-lease, sub-license, merge, adapt or vary the Software;
to keep all copies of the Software secure and to maintain accurate and up-to- date records of the number and location of all copies of the Software and the names of all Designated Users and the identity of all Designated Servers, and to provide such information to us or our representatives as may reasonably be required to demonstrate your compliance with these terms;
to supervise and control Use of the Software in accordance with the terms of this Licence, and to provide us or our representatives such information as may reasonably be required to demonstrate your compliance with this Licence;
to ensure that your employees, representatives and other parties who will use the Software are notified of this Licence and the terms hereof prior to such employee, representative or party using the same;
to reproduce and include our copyright notice on all entire and partial copies you make of the Software on any medium;
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 other than your employees or as specified herein without prior written consent from us;
not to use the Software to provide a data processing or bureau service to any third party by way of trade or otherwise;
not to display the Software on a public bulletin board, ftp site, worldwide web site, chat room or by any other unauthorised means;
not to use the Software for immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful including but not limited to the creation or transmission of any virus, worms, trojan horse or any other destructive or contaminating program;
to comply with the terms of any third-party software included in the download package if you use such third-party software.
3.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF:
MERCHANTABILITY OR REASONABLE QUALITY,
FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
3.2 THE LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR THAT SUCH ERRORS WILL BE CORRECTED AND THE LICENSEE IS SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES ASSOCIATED WITH RECTIFICATION, REPAIR OR DAMAGE CAUSED BY SUCH ERRORS. Exclusion of warranties may not be valid in certain jurisdictions, however, the only applicable laws under which this Licence may be construed are specified in clause 8.6 below.
3.3 We may create new versions of the Software ("Upgrades") which may correct such errors as mentioned in clause 3.2 above, and although we have no obligation to notify you of such Upgrades, the same will be made available at the same internet website as you downloaded the Software accompanying this Licence, at such cost and on such terms as shall be indicated. If you elect to subscribe to and pay for software maintenance, there shall be no charge for Upgrades during the period of your subscription, and we shall give you the option of being notified of such Upgrades by email.
3.4 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to evaluate and ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
3.5 We only supply the Software for internal use by your business, and you agree not to use the Software for any re-sale purposes.
3.6 We shall not under 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:
loss of profits, sales, business, or revenue;
loss of anticipated savings;
loss or corruption of data or information;
loss of business opportunity, goodwill or reputation; or
any indirect or consequential loss or damage.
3.7 Other than the losses set out in clause 3.6 (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 100% of the Licence Fee. This maximum cap does not apply to clause 3.8.
death or personal injury resulting from our negligence;
fraud or fraudulent misrepresentation;
any other liability that cannot be excluded or limited by English law.
3.9 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software. 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 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.
4.1 You acknowledge that all copyright, trade marks and other intellectual property rights subsisting in or used in connection with the Software (including but not limited to patents AU2001270901; EP1325432; US8196135; CA 2416876; US 8,423,518 B2; EP2174238; 602008031420.0 and patent applications 1315520.5, 14275178.3, 14/474,377, all images, animations, audio and other identifiable material relating to the Software) anywhere in the world are and remain the sole property of us. You acquire no rights in, or to, the Software, other than the right to use it in accordance with the terms of this Licence.
4.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments other than as expressly provided to you.
4.3 The integrity of this Software is protected by technical protection measures ("TPM") so that the intellectual property rights, including copyright, in our Software are not misappropriated. You 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 your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
Any form of advertising or publicity or reference to you shall require your prior written consent (such consent not to be unreasonably withheld or delayed), provided that we shall be permitted to refer to you in a list of our clients without your prior approval. You may request removal from such a list at any time by notice in writing to us.
6.1 This Licence will terminate on the date specified in the licence key unless terminated earlier in accordance with provisions of this Agreement.
6.2 We may terminate this Licence immediately by written notice if you commit a material 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.
6.3 You may terminate this Licence at any time by destroying the Software, Documentation and all copies. No Licence Fee or software maintenance fee is refundable.
6.4 Upon termination for any reason:
all rights granted to you under this Licence shall cease;
you must immediately cease all activities authorised by this Licence;
you must immediately pay to us any sums due to us under this Licence; and
you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to us (at out option) the Software and all Upgrades and copies then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
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 ten 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.
8.1 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.
8.2 You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.
8.3 This Licence and any document expressly referred to in it constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of the us which is not set out in this Licence or any document expressly referred to in it.
8.4 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.
8.5 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.
8.6 This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by the laws of England and Wales. We both agree to the exclusive jurisdiction of the courts of England and Wales. Nothing in this clause shall limit the right of us to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.