Malvern Panalytical Ltd
Software Licence Agreement
THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THIS SOFTWARE AND ITS ASSOCIATED DOCUMENTATION ARE OWNED BY MALVERN PANALYTICAL AND/OR MALVERN PANALYTICAL'S LICENSORS. PLEASE READ THE TERMS OF THIS SOFTWARE LICENCE AGREEMENT ("LICENCE") WHICH IS EITHER ENCLOSED IN THE SOFTWARE PACKAGE AND/OR PRESENTED ELECTRONICALLY WHEN ACCESSING THE SOFTWARE. BY CLICKING THE "AGREE/ACCEPT" BUTTON OR BY OPENING THIS PACKAGE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENCE.
1. General. The software, documentation and any fonts accompanying this Licence 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 Licence, 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 Malvern Panalytical's licensor(s) retain ownership of the Malvern Panalytical Software itself. The rights granted under the terms of this Licence include any software upgrades that replace and/or supplement the original Malvern Panalytical Software product, unless such upgrade contains a separate licence.
2. Grant of Licence. In consideration of your agreement to the terms of this Licence and payment for the products accompanying the Malvern Panalytical Software, Malvern Panalytical grants you a non-exclusive, non-transferable royalty free right to use the Malvern Panalytical Software only in conjunction with the products supplied with the Malvern Panalytical Software.
3. Permitted Licence Uses and Restrictions. This Licence allows you to install and use the Malvern Panalytical Software on a single computer or on multiple computers compatible with the Malvern Panalytical Software and allows the Malvern Panalytical Software to be accessed and used remotely across a network. 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 Licence or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, adapt, merge, translate, 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 Licence. IT IS A CONDITION OF THIS LICENCE 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 OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE MALVERN PANALYTICAL SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
4. Transfer. You may not rent, lease, lend or sublicense the Malvern Panalytical Software. You may, however, make a one-time permanent transfer of all of your licence rights to the Malvern Panalytical Software to another party, provided that: (a) the transfer must include all of the Malvern Panalytical Software, including all its component parts, original media, printed materials and this Licence; (b) you do not retain any copies of the Malvern Panalytical Software, full or partial, including copies stored on a computer or other storage device; (c) you are not in breach of any term under the Licence and (d) the party receiving the Malvern Panalytical Software reads and agrees in writing to accept the terms and conditions of this Licence.
5. Not for Resale Copies. Notwithstanding other clauses of this Licence, Malvern Panalytical Software labelled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
6. Indemnity. 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 Licence.
7. Termination. This Licence is effective until terminated. Either party may terminate this Licence 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; or
(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 Licence by destroying the Malvern Panalytical Software together with all copies.
Upon the termination of this Licence, 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 Licence or at Law.
8. Waiver. Failure or delay by Malvern Panalytical to enforce at any time any of the provisions under this Licence shall not be construed or deemed to be a waiver of Malvern Panalytical'S rights under this Licence.
9. Limited Warranty. Malvern warrants for a period of ninety (90) 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 (i) or (ii) above during the period of ninety (90) days from the date of delivery of the Malvern Panalytical Software, Malvern Panalytical will use all reasonable efforts to correct any such errors 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 or a Malvern Panalytical authorised representative with documentary proof of purchase.
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 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 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 NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE MALVERN PANALYTICAL SOFTWARE WE WILL SERVICE, REPAIR OR CORRECT THE MALVERN PANALYTICAL SOFTWARE AT OUR STANDARD CHARGING RATES/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 order including the Malvern Panalytical Software.
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 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 English law.
12. Export Law Assurances. You may not use or otherwise export or re-export the Malvern Panalytical Software except as authorised by English law and the laws of the jurisdiction in which the Malvern Panalytical Software was obtained. In particular, but without limitation, the Malvern Panalytical Software may not be exported or re-exported (a) into (or to a national or resident of) any U.K. embargoed countries or (b) to anyone on the U.K. DTI Denied Person’s List or Entity List. 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 such country or on any such 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.