TERMS AND CONDITIONS FOR LICENCE OF MULTI-FEAST
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING ANY SOFTWARE FROM THIS WEBSITE (OUR “SITE”)
YOU SHOULD PRINT A COPY OF THIS LICENCE FOR YOUR FUTURE REFERENCE
PARTIES: This licence agreement (“Licence”) is a legal agreement between you (“Licensee” or “you”) and Simuline Trading Limited, a company incorporated and registered in England and Wales with company number 8892540 whose registered office is at 21 High Street, Lutterworth, Leicestershire, England, LE17 4AT (the “Licensor”, “us” or “we”).
OVERVIEW OF LICENCE: This Licence sets out the terms of your licence of the following software and documents from us:
• the Multi-FEAST 2.4 computer software or, if you are a student user, the Multi-FEAST 2.4 computer software (Student edition) (in each case, the “Software”); and
• the associated technical documents and details accompanying the Software (whether provided online or with the download of the Software) (the “Documents”).
We license the use of the Software and Document 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.
SYSTEM REQUIREMENTS: The Software requires a minimum of:
Processor: Pentium 233 MHz
Operating System: Windows XP, Vista, Windows 7, Windows 8 (32, 64 or 128 bit)
Graphical capabilities: SVGA 800×600
Hard disk drive space: 1.5Gb
IMPORTANT NOTICE TO ALL USERS:
• By downloading the Software from our Site you agree to the terms of this Licence which will bind you and your officers and employees.
• You should, in particular, note the restrictions on our liability to you set out in Condition 5 (Limitation of Liability if you are a Business User) and Condition 6 (Limitation of Liability if you are a Consumer).
• If you do not agree to the terms of this Licence, we will not license the Software and Documents to you and you must immediately discontinue the download process.
IMPORTANT NOTICE TO CONSUMERS (INCLUDING STUDENT USERS):
• If you are dealing as a consumer (rather than as a business), you typically have enhanced rights to cancel transactions entered into online. However, given the digital nature of the Software and the Documents, you will lose the right to cancel the transaction once you begin to download them from our Site.
• Nothing in this Licence affects your consumer rights should the Software or Documents be defective.
• Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
1. GRANT AND SCOPE OF LICENCE
1.1. Subject to Condition 1.4 and 2.4, 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 in the UK on the terms of this Licence.
1.2. You may:
1.2.1. download, install and use the Software for your personal purposes (if you are a consumer) or your internal business purposes (if you are a business) only, on one device (multiple licences may be taken out if the Software is required for multiple machines);
1.2.2. provided you comply with the provisions in Condition 2 (Restrictions), make a copy of the Software for back-up purposes only;
1.2.3. receive and use any free supplementary software code or update of the Software and/or Documents incorporating “patches” and corrections of errors as may be provided by us from time to time for the duration of your licence (you will receive an e-mail from us informing you when such an update is available to be downloaded from our Site); and
1.2.4. use any Documents in support of the use permitted under this Condition 1.2 and make such copies of the Documents as are reasonably necessary for your use of the Software.
1.3. Unless expressly stated otherwise the licence fee and all other sums payable under this Licence are exclusive of VAT or any relevant local sales taxes (for which you shall be responsible).
1.4. If you are a Student User, we reserve the right to require you to provide proof of your status as a student at a qualifying educational body before we grant you this licence. This includes, without limitation, providing us with details of your supervisor’s e-mail address, contact details and your own institutional e-mail address. Details of what we consider to be a qualifying educational body are available on request. We reserve the right to revoke your licence if you at any point cease to be a student at a qualifying educational body.
2.1. Except as expressly set out in this Licence or as permitted by any local law, you undertake:
2.1.1. not to copy the Software or Documents except where such copying is incidental to the normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
2.1.2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documents;
2.1.3. not to make alterations to, or modifications of, the whole or any part of the Software or Documents, nor permit the Software or Documents or any part of them to be combined with, or become incorporated in, any other programs;
2.1.4. 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:
184.108.40.206. is used only for the purpose of achieving inter-operability of the Software with another software program;
220.127.116.11. is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
18.104.22.168. is not used to create any software which is substantially similar to the Software.
2.1.5. 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 and Documents;
2.1.6. to supervise and control the use of the Software and Documents and ensure that the Software and Documents are used by your employees and representatives in accordance with the terms of this Licence;
2.1.7. to include our copyright notice on all copies you make of the Software or the Documents on any medium (whether such copies are entire or partial);
2.1.8. not to, without our prior written consent, provide or otherwise make available the Software or Documents 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 officers and employees; and
2.1.9. not to use the Software via any communications network or by means of remote access.
2.2. If you are a Business User you will shall permit us (or our authorised representatives) to inspect and have access to:
2.2.1. any premises or computer equipment at or on which the Software is being kept or used; and
2.2.2. any records you keep in connection with this Licence,
for the purposes of ensuring that you are complying with the terms of this Licence.
2.3. If you are found to have used the Software in breach of the terms of this Licence you will be required to pay us, for broadening the scope of this Licence to cover the unauthorised use, an amount equal to the fees which we would have levied (in accordance with our normal commercial terms) had we licensed any such unauthorised use on the date when such use commenced. This Condition 2.3 is without prejudice to any other rights which we may have under this Licence or as a matter of law as a result of such unauthorised use.
2.4. If you are using a Demo Licence or a Student Licence, certain aspects of the Software’s functionality will be disabled. Details of what functionality is available under such licences can be found in the “Software structure” section of our Site (www.multi-feast.com). We reserve the right to change the details shown on this section of our Site from time to time but such changes will only affect future licences we grant (and not the scope of any existing licence you may have).
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 or in unlocked coding or with comments.
3.3. The integrity of this Software is protected by technical protection measures (“TPM”) so that the intellectual property rights, including copyright, in the Software are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor apply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPM.
4. LIMITED WARRANTY
4.1. We warrant that:
4.1.1. the Software will, when properly used and on an system which at least meets the minimum requirements for which it was designed, perform substantially in accordance with the functions described in the Documents; and
4.1.2. that the Documents correctly describe the operation of the Software in all material respects,
for a period of 30 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:
4.3.1. if the defect or fault in the Software results from you having amended the Software;
4.3.2. if the defect or fault in the Software results from you having used the Software in contravention of the terms of this Licence;
4.3.3. if the defect or fault in the Software results from use of the Software in contravention with any instructions or guidelines set out in the Documents; or
4.3.4. if the configuration of the system on which the Software is, or is to be, installed is such that the install program cannot itself successfully be completed, that the application does not run, is prevented from running, or does not run correctly.
4.4. We do not warrant that your use of the Software will be 100% uninterrupted or error-free.
4.5. 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.
5. LIMITATION OF LIABILITY IF YOU ARE A BUSINESS USER (INCLUDING ACADEMIC RESEARCH, INDUSTRIAL AND OTHER NON-STUDENT DEMO USERS)
5.1. You acknowledge that:
5.1.1. 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; and
5.1.2. while it is a useful part of such a system, use of the Software is not itself a substitute for your development, use and maintenance of an industry appropriate system of equipment and facility monitoring, maintenance and renewal.
5.2. If you are:
5.2.1. a Demo User, we only supply the Software and Documents for internal non-commercial trial purposes;
5.2.2. a Business User, we only supply the Software and Documents for internal use by your business; and
5.2.3. an Academic User, we only supply the Software and Documents for non-commercial academic use,
and you agree not to use the Software or Documents for any re-sale or re-licensing purposes.
5.3. 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:
5.3.1. loss arising from your failure to develop, use or maintain a system of the kind described in Condition 5.1.2 above;
5.3.2. loss arising from a user’s failure to use the Software in accordance with the instructions set out within the Documents (such as a failure to correctly input “appropriate” data into, or interpret the results arising from, their use of the Software). The relevant instructions, including guidance on what is required for “appropriate” data, such as how exacting you must be with regards to the properties of the materials in question, can be found in the Documents;
5.3.3. loss arising from the use of estimated values where the user does not have exact data;
5.3.4. loss of profits, sales, business, or revenue;
5.3.5. business interruption;
5.3.6. loss of anticipated savings;
5.3.7. loss or corruption of data or information;
5.3.8. loss of business opportunity, goodwill or reputation; or
5.3.9. any indirect or consequential loss or damage.
5.4. Other than the losses set out in Condition 5.3 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 150% of the Licence Fee. This maximum cap does not apply to Condition 5.5 below.
5.5. Nothing in this Licence shall limit or exclude our liability for:
5.5.1. death or personal injury resulting from our negligence;
5.5.2. fraud or fraudulent misrepresentation; or
5.5.3. any other liability that cannot be excluded or limited by English law.
5.6. Each party acknowledges that, in entering into this Licence it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Licence or not) (a “Representation”) other than as expressly set out in this Licence of the Documents. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Licence.
5.7. Further to Condition 5.3.2 above, you acknowledge and agree that it is your responsibility to ensure that anyone using the Software under this licence (including your officers and employees) is trained in its proper use and is aware of both the restriction under this Licence and the instructions set out within the Documents.
5.8. 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 (INCLUDING STUDENT USERS)
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. Should you make any such use of the Software or Documents we will have no liability to you for any loss of profit, loss of business, business interruption, loss of business opportunity, or any of the other forms of loss described in Condition 5 (Limitation of Liability if you are a Business User).
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 in Condition 6.4 below. Loss or damage is foreseeable if it was an obvious consequence of our breach or if it was 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 300% of the Licence Fee. This does not apply to the types of loss set out in Condition 6.5 below.
6.5. Nothing in this Licence shall limit or exclude our liability for:
6.5.1. death or personal injury resulting from our negligence;
6.5.2. fraud or fraudulent misrepresentation; or
6.5.3. any other liability that cannot be excluded or limited by English law.
7. DURATION AND TERMINATION
7.1. This Licence shall continue for a period of:
7.1.1. in the case of a licence expressed to be a “Demo Licence” (a “Demo User”), a period of 30 days;
7.1.2. in the case of a licence expressed to be an “Academic” or “Industrial” licence (an “Academic User” and “Business User” respectively), a period of one year;
7.1.3. in the case of a licence expressed to be a “Student” licence, a period of five months (a “Student User”);
7.1.4. in the case of a licence where the period is separately agreed between us in writing, such other period as we so agree; or
7.1.5. in all other cases, one year.
The Licence will automatically terminate following the expiry of the relevant period. You will be required to renew your licence to continue using the Software.
7.2. 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.
7.3. Upon termination for any reason:
7.3.1. all rights granted to you under this Licence shall cease;
7.3.2. you must immediately cease all activities authorised by this Licence;
7.3.3. you must immediately pay to us any sums due to us under this Licence; and
7.3.4. 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, if we request, certify to us that you have done so.
7.4. Any provision of this Licence that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Licence shall remain in full force and effect.
7.5. Termination or expiry of this Licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Licence which existed at or before the date of termination or expiry.
8. COMMUNICATIONS BETWEEN US
8.1. If you are a consumer:
8.1.1. 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 by e-mail or by post using the details set out on the “Contacts” section of our Site (www.multi-feast.com). We will confirm receipt of this by contacting you in writing, normally by e-mail; and
8.1.2. if we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your order for the Software.
8.2. If you are a Business User:
8.2.1. any notice given by you to us, or by us to you, will be deemed received and properly served immediately when posted on our Site, 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; and
8.2.2. routine communications relating to the performance of this Licence may be conducted by e-mail. However, the parties acknowledge and agree that any communication by e-mail shall not amount to notice in writing for the purposes of Condition 8.2.1 above or to a written instrument for the purposes of Condition 11.3 (Variation) unless expressly acknowledged or agreed in writing (such express agreement may itself be given by e-mail). For the avoidance of doubt an automated response shall not constitute an express acknowledgment for the purposes of this Condition 8.2.2.
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 in Condition 9.2 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:
9.3.1. 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
9.3.2. 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.
10.1. If you are a business user we may, or permit any person to make on our behalf, one or more public announcements, press releases, communications or circulars (“Announcements”) concerning this Licence and your use of the Software. We shall not be required to consult with you on the timing, contents and manner of release of any such Announcement.
11. OTHER IMPORTANT TERMS
11.1. Transfer by us: 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.
11.2. Transfer by you: You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.
11.3. Variation: No variation of this Licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4. Entire Agreement: If you are a 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.
11.5. Waiver: 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.
11.6. Severance: 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.
11.7. Third Party Rights: A person who is not a party to this Licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence,
11.8. Consumer – Governing Law: 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.
11.9. Business – Governing Law: If you are a 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.