END USER SOFTWARE LICENSE AGREEMENT
THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND ITS ASSOCIATED DOCUMENTATION ARE OWNED BY MALVERN PANALYTICAL B.V. AND/OR MALVERN PANALYTICAL LTD. (‘MALVERN PANALYTICAL’) AND/OR ITS LICENSORS. PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (‘LICENSE’) WHICH IS EITHER ENCLOSED IN THE SOFTWARE PACKAGE AND/OR PRESENTED ELECTRONICALLY WHEN ACCESSING THE SOFTWARE. BY CLICKING THE ‘AGREE/ACCEPT’ BOX ON SCREEN, BY BREAKING THE SEAL AND OPENING THIS PACKAGE, OR BY RUNNING THE SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
The software, documentation and any fonts accompanying this License whether on disk, in read-only memory, on any other media or in any other form (collectively the ‘Malvern Panalytical Software’) are licensed, not sold, to you by Malvern Panalytical for use only under the terms of this License, and Malvern Panalytical reserves all rights not expressly granted to you. The rights granted herein are limited to Malvern Panalytical’s and/or its licensors' intellectual property rights in the Malvern Panalytical Software and do not include any other patents or intellectual property rights. You own the media on which the Malvern Panalytical Software is recorded, but Malvern Panalytical and/or its licensor(s) retain ownership of the Malvern Panalytical Software itself. The rights granted under the terms of this License include any software upgrades that replace and/or supplement the original Malvern Panalytical Software, unless such an upgrade contains a separate license.
2. Grant of Licence.
In consideration of your agreement to the terms of this License and payment for the (instrument accompanying the) Malvern Panalytical Software, Malvern Panalytical grants you a non-exclusive, non-transferable royalty-free right to use the Malvern Panalytical Software either in conjunction with the instrument supplied with Malvern Panalytical Software or stand-alone.
You acknowledge and accept that the Malvern Panalytical Software could check for updates and/or news at Malvern Panalytical, or transmit information about the (use of the) Malvern Panalytical Software. Such information includes for example the version and product key of the Malvern Panalytical Software and the internet protocol address of the device and information derived from the hardware configuration of the device the software is running upon. By using the Malvern Panalytical Software you consent to the transmission of such information.
The Malvern Panalytical Software may ask you to send crash reports to Malvern Panalytical. Crash reports never contain your proprietary data (including measurement results). The contents of any crash report can be inspected before posting it.
3. Permitted Licence Uses and Restrictions.
(i) allows you to use the Malvern Panalytical Software in (i) a one-time installation of the Malvern Panalytical Software to control a single Malvern Panalytical instrument or for running it with a licensing dongle on a single PC; or in (ii) a maximum of three installations at the same street address and insofar related to the same Malvern Panalytical instrument using electronic license keys (“Main License to Use”);
(ii) forbids you using the Malvern Panalytical Software remotely across a network (a separate network license would be required);
(iii) forbids you enabling third parties to access the Malvern Panalytical Software remotely across a network.
Any installation of the Malvern Panalytical Software beyond the installation as defined under the Main License to Use in Clause 3 (i), including any type of installation howsoever performed or accomplished, whether on a personal computer, tablet, PDA or any other type of device and whether or not virtual, is expressly forbidden.
Upon request, more license possibilities (additional licenses, educational licenses, timed licenses and trial licenses) are available.
You may make a copy of the Malvern Panalytical Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original and the copy will remain under your control. Except as and only to the extent expressly permitted in this License or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, adapt, merge, translate, publish or create derivative works of the Malvern Panalytical Software or any part thereof. Prior to use of the Malvern Panalytical Software by your employees or agents, you will ensure that all parties are notified of the terms of this License. IT IS A CONDITION OF THIS LICENSE THAT THE MALVERN PANALYTICAL SOFTWARE IS NOT USED IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES, DEVICES, APPLIANCES OR SYSTEMS, MEDICAL SYSTEMS OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE MALVERN PANALYTICAL SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL PROPERTY OR ENVIRONMENTAL DAMAGE.
You may not rent, lease, lend or sublicense Malvern Panalytical Software. The transfer of Malvern Panalytical Software is not possible.
5. Not for Resale Software
Notwithstanding other clauses of this license, Malvern Panalytical Software labelled or otherwise provided to you on a promotional, educational or on a trial basis (‘Not For Resale Software or NFR Software’) may only be used for demonstration, educational, testing and evaluation purposes and may not be resold or transferred. NFR Software may be restricted in time and/or functionality. NFR Software cannot be installed on virtual devices. Usage of NFR Software could be monitored by Malvern Panalytical. The compatibility of documents created with NFR Software with other Malvern Panalytical Software or any other software is not guaranteed.
You shall indemnify Malvern Panalytical fully and on-demand against all liabilities, costs and expenses which Malvern Panalytical may incur as a result of your breach of clauses 3, 4 or 5 of this license.
This license is effective until terminated. Either party may terminate this license by written notice with immediate effect if:
(i) the other party is in breach of a material term and (where the breach is capable of being remedied) fails to remedy that breach within 14 days of being requested to do so; o
(ii) the other party is subject to any insolvency proceedings, ceases trading, makes any arrangements with creditors or generally becomes unable to pay its debts.
You may terminate this License by destroying the Malvern Panalytical Software together with all copies.
Upon the termination of this License, you shall cease all use of the Malvern Panalytical Software and destroy or return all copies of the Malvern Panalytical Software. If requested by Malvern Panalytical, you will confirm compliance with this clause by way of a letter signed by your Managing Director. Termination pursuant to this clause shall not affect any rights or remedies which Malvern Panalytical may otherwise have under this License or at Law.
Failure or delay by Malvern Panalytical to enforce at any time any of the provisions under this License shall not be construed or deemed to be a waiver of Malvern Panalytical’s rights under this License.
9. Limited Warranty
Malvern Panalytical warrants for a period of sixty (60) days from the date of delivery of the Malvern Panalytical Software that:
(i) the Malvern Panalytical Software will perform substantially in accordance with any accompanying specification or product description; and
(ii) the media on which the Malvern Panalytical Software is recorded and delivered (if applicable) will be free from defects in materials and workmanship under normal use.
If Malvern Panalytical is notified of significant errors in relation to the warranty as set out above during the period of sixty (60) days from the date of delivery of the Malvern Panalytical Software, Malvern Panalytical will use all reasonable efforts to correct any such errors or to provide a work-around solution within a reasonable time, or at Malvern Panalytical’s option, provide or authorise a refund (against return of the Malvern Panalytical Software) or replace the Malvern Panalytical Software which is returned to Malvern Panalytical with a reference to the purchase order to which it relates.
10. Disclaimer of Warranties
THE LIMITED WARRANTY AS SET OUT ABOVE IS THE ONLY WARRANTY MADE TO YOU AND MALVERN PANALYTICAL DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE MALVERN PANALYTICAL SOFTWARE IMPLIED BY STATUTE, CUSTOM OR COMMON LAW INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF SATISFACTORY QUALITY AND FITNESS AND FOR A PARTICULAR PURPOSE.
Clause 9 represents your sole and exclusive remedy for any breach of Malvern Panalytical’s warranties. Malvern Panalytical will not be liable under Clause 9 if the Malvern Panalytical Software fails to operate as a result of any unauthorized modification, variation or addition to the Malvern Panalytical Software not performed by us or caused by any abuse, corruption or incorrect use of the Malvern Panalytical Software, including use of the Malvern Panalytical Software with equipment or other software which is incompatible. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE MALVERN PANALYTICAL SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU EXCEPT FOR THE LIMITED WARRANTIES IN CLAUSE 9.
MALVERN PANALYTICAL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MALVERN PANALYTICAL SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE MALVERN PANALYTICAL SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MALVERN PANALYTICAL SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MALVERN PANALYTICAL OR A MALVERN PANALYTICAL AUTHORISED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE MALVERN PANALYTICAL SOFTWARE OR ACCOMPANYING MEDIA PROVE DEFECTIVE MORE THAN SIXTY (60) DAYS FROM THE DATE OF DELIVERY OF THE MALVERN PANALYTICAL SOFTWARE, MALVERN PANALYTICAL WILL SERVICE, REPAIR OR CORRECT THE MALVERN PANALYTICAL SOFTWARE AT ITS STANDARD CHARGING RATES OR IN ACCORDANCE WITH ANY MAINTENANCE AGREEMENT IN PLACE.
11. Limitation of Liability
In the event of direct losses arising out of or in connection with the use or possession of Malvern Panalytical Software, Malvern Panalytical’s total aggregate liability to you shall be limited to the price payable for the Malvern Panalytical Software order.
In no event shall Malvern Panalytical be liable for:
(i) any loss of profits; or
(ii) any loss of business; or
(iii) any depletion of goodwill and/or similar losses; or
(iv) any loss of anticipated savings; or
(v) any loss of goods; or
(vi) any loss of contract; or
(vii) any loss of use; or
(viii) any loss of or corruption to data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
Nothing in this Clause limits or excludes the liability of Malvern Panalytical for:
(a) death or personal injury resulting from negligence; or
(b) any damage or liability resulting from fraud or fraudulent misrepresentation or
(c) any other liability which cannot be validly limited or excluded in Dutch and/or English law.
12. Export Law Assurances
You acknowledge that the Malvern Panalytical Software may be subject to export control regulations and that you may not use or otherwise export or re-export the Malvern Panalytical Software except as authorised by the applicable export control regulations, including Dutch/English law and the laws of the jurisdiction in which the Malvern Panalytical Software was obtained. In particular, but without limitation, you undertake that you will not, and will procure that none of your Affiliates will, use, sell, resell, export, re-export, transfer, divert, distribute, dispose of, disclose or otherwise deal with the Malvern Panalytical Software, directly or indirectly, to any country, destination or person without first obtaining any required export license or other governmental approval and completing such formalities as may be required by any applicable export control regulations.
By using the Malvern Panalytical Software, you represent and warrant that you (which includes a body corporate) are not located in, under the control of, or a national or resident of any embargoed country or on any national, international or supranational denied party, denied persons or denied entity list.
13. U.S. Government End Users
In the event that you are a U.S. Government end user, the Malvern Panalytical Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
14. Governing Law and Severability
All matters arising out of or in connection with this License will be governed by and construed in accordance with Dutch/English law. This license shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason any provision or portion thereof, is found or held to be unenforceable, the remainder of this License shall continue in full force and effect.
15. Dispute Resolution
All disputes arising in connection with this License, which cannot be resolved amicably through negotiations within sixty (60) days after either party has served written notice to the other requesting such negotiations, shall be submitted to the exclusive jurisdiction of the courts in the Netherlands/United Kingdom, but Malvern Panalytical shall be entitled to bring in court of competent jurisdiction.
16. Entire Agreement and Governing Language
This License constitutes the entire agreement between the parties with respect to the use and/or operation of the Malvern Panalytical Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. In the event of a conflict between a term of this License and the term of any other agreement with respect to the use and/or operation of the Malvern Panalytical Software licensed hereunder, the term in this License shall prevail. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of Malvern Panalytical. Any translation of this License is done for local requirements and in the event of a conflict between the English and any non-English versions, the English version of this License shall govern.