[Nematrian website page: LicenseAgreement, © Nematrian 2015]
NEMATRIAN LIMITED (“NEMATRIAN” OR THE “LICENSOR”) IS WILLING TO LICENSE THE SOFTWARE IDENTIFIED BELOW TO YOU (THE “LICENSEE”), AND TO ALLOW YOU TO MAKE USE OF ASSOCIATED SERVICES IT PROVIDES VIA ITS WEBSITE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT (“AGREEMENT”). PLEASE READ THE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING AND/OR MAKING USE OF THIS SOFTWARE, YOU ACCEPT THE TERMS OF THE AGREEMENT. IF THE LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT INSTALL OR USE ANY OF THE SOFTWARE DEVELOPED BY NEMATRIAN.
“Licensor” means Nematrian Limited except under the following circumstances: (i) if Licensee acquired the Software and Associated Services as a bundled component of a third party product or service, then such third party shall be Licensor; and (ii) if any third party software is included as part of the default installation and no License is presented for acceptance the first time that third party software is invoked, then the use of that third party software shall be governed by this Agreement, but the term “Licensor”, with respect to such third party software, shall mean the manufacturer of that software and not Nematrian. With the exception of the situation described in (ii) above, the use of any included third party software product shall be governed by the third party's License agreement and not by this Agreement, whether that License agreement is presented for acceptance the first time that the third party software is invoked, is included in a file in electronic form, or is included in the package in printed form. If more than one License agreement was provided for the Software and Associated Services, and the terms vary, the order of precedence of those License agreements is as follows: a signed agreement, a License agreement available for review on the Nematrian website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with the Software and Associated Services, an electronic agreement provided with the Software and Associated Services.
“Software” means “Client-side Software” and “Server-side Software”.
“Client-side Software” means any software or other material downloadable from Nematrian websites, any other related machine readable materials (including, but not limited to, libraries, source files, header files, and data files), any updates or error corrections to the above provided by Nematrian, and any associated user manuals, programming guides and other documentation provided to you by Nematrian under this Agreement.
“Server-side Software” means any software on Nematrian servers accessible by third parties via the
“Associated Services” means any automated service (i.e. not including consultancy services)
provided by Nematrian that makes use of the Software or that is otherwise provided by Nematrian
servers, including static and interactive pages and web services accessible to users via these pages.
“Content” means all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) that you may have access to as part of, or through your use of, the Software and Associated Services. The rights granted herein are limited to Nematrian’s intellectual property rights in the Software and Associated Services and do not include any other patent or intellectual property rights.
“Programs” mean applications that access web services provided by Nematrian servers. You may
own the media on which Programs are recorded but Nematrian retains ownership of the Software.
2. LICENSE TO USE
Nematrian grants you a non-exclusive, non-transferable, limited license to:
(i) reproduce and use internally Client-side Software and to use Server-side Software complete and unmodified for the sole purpose of designing, developing, running and testing Programs. This License does not entitle the Licensee to receive from the Licensor hard-copy documentation, technical support or telephone assistance; and
(ii) to reproduce and distribute Programs that use the Software, provided that (i) you distribute Client-side Software complete and unmodified and only bundled as part of, and for the sole purpose of running, your Programs, (ii) you do not distribute copies of Server-side Software or its source code irrespective of how you obtained copies of either, (iii) the Programs add significant and primary functionality to the Software, (iv) you do not distribute additional software intended to replace any component(s) of the Software, (v) you do not remove or alter any proprietary legends or notices contained in the Software, (vi) you only distribute the Software subject to a license agreement that protects Nematrian's interests consistent with the terms contained in this Agreement, and (vii) you agree to defend and indemnify Nematrian and its licensors from and against any damages, costs,
liabilities, settlement amounts and/or expenses (including lawyers’ and attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of any and all Programs and/or Software.
Except as otherwise expressly permitted in this Agreement, you agree:
(i) to use the Software and Associated Services only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in relevant jurisdictions;
(ii) not to engage in any activity that interferes with or disrupts the Software and Associated Services (or the servers and networks used to provide these services);
(iii) not to use the Software or Associated Services to gain or try to gain unauthorized access to any service, data, account or network by any means;
(iv) not to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the Software (except to the extent applicable laws specifically prohibit such restriction). Software may contain source code that, unless expressly licensed for other purposes, is provided solely for reference purposes pursuant to the terms of this Agreement. Source code may not be
redistributed unless expressly provided for in this Agreement. Any attempt to do so is a violation of the rights of Nematrian and/or its licensors. If you breach this restriction, you may be subject to prosecution and damages;
(v) not to use, create or refine software designed to circumvent human viewing of Nematrian log-in pages, unless otherwise agreed with Nematrian;
(vi) not to rent, lease, lend, redistribute or sublicense the Software. You may, however, make a one- time permanent transfer of all of your license rights to the Software to another party provided that:
(a) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device; and (b) the party receiving the Software reads and agrees to accept the terms and conditions of this License;
(vii) the Software is confidential and copyrighted. Title to the Software and all associated intellectual property rights is retained by Nematrian and/or its licensors. By storing content on a Nematrian server using the Software you are making a digital copy. In some jurisdictions, it is unlawful to make digital copies without prior permission from the rightsholder. The Software may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce;
(viii) that you are solely responsible for (and that Nematrian has no responsibility to you or any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage that Nematrian may suffer) of any such breach;
(ix) no right, title or interest in or to any trademark, service xxxx, logo or trade name of Nematrian and/or its licensors is granted under this Agreement. You may make copies of Client-side Software stored on your computer(s) in machine-readable form for backup purposes only, provided that any backup copy must include all copyright or other proprietary notices contained on the original. This License does not grant you any rights to use Nematrian proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories for use with the Software except as set out in this Agreement; and
(x) not share your Nematrian User ID(s) and User Password(s) (or other identifiers that Nematrian uses to differentiate your use of its site from use by others) with anyone else. You acknowledge and agree that Nematrian is not liable for any loss or damage that may be incurred by you or anyone else as a result someone else accessing your personal information or other data you may have loaded onto the Nematrian website because you have shared your Nematrian User ID(s) or User Password(s) with others or because you have accessed the Nematrian website using a computer or other device on which there is spyware or other software that is monitoring your interaction with the website in ways that you do not wish to happen.
4. ACCEPTANCE OF TERMS
In order to use the Software you must first agree to the terms and conditions set out in this Agreement. You may not use the Software if you do not accept these terms and conditions. You can accept these terms and conditions either by clicking to accept or agree the terms and conditions, where this option is made available to you by Nematrian in the user interface for any Software element, or by actually using the Software.
5. PROVISION OF SOFTWARE
Nematrian is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Software and Associated Services that Nematrian provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that Nematrian may stop (permanently or temporarily) providing the Software or Associated Services to you or users generally at Nematrian’s sole discretion, without prior notice to you.
6. HIGH RISK ACTIVITIES
YOU ACKNOWLEDGE THAT THE LICENSED SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SOFTWARE OR UPDATES COULD LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL, FINANCIAL OR ENVIRONMENTAL DAMAGE. NEMATRIAN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
7. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE. EXCEPT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NEMATRIAN HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEMATRIAN DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NEMATRIAN OR A NEMATRIAN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT BE APPLICABLE TO YOU.
8. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NEMATRIAN BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NEMATRIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event
will Nematrian's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the greater of £1 and the amount paid by you for Software under this Agreement. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or
consequential damages, so some of the above limitations may not be applicable to you. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose.
This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all your copies of Client-side Software. This Agreement will terminate immediately without notice from Nematrian if you fail to comply with any provision of this Agreement. Either party may terminate this Agreement immediately should the Software or any part of it become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon Termination, you shall cease all use of the Software.
10. TRADEMARKS AND LOGOS
You acknowledge and agree as between you and Nematrian that Nematrian owns all Nematrian- related trademarks, service marks, logos and other brand designations ("Marks"), and you agree to comply with any Nematrian Trademark and Logo Usage Requirements set out on the Nematrian website. Any use you make of the Marks inures to Nematrian's benefit. The Software is protected by copyright and other intellectual property laws and by international treaties.
11. THIRD PARTY CODE
Additional copyright notices and license terms applicable to portions of the Software may be set out on the Nematrian website. In addition to any terms and conditions of any third party license identified there, whether open-source, freeware or otherwise, the disclaimer of warranty and limitation of liability provisions in paragraphs 7 and 8 of the License Agreement shall apply to all Software in this distribution.
12. PRIVACY AND YOUR PERSONAL INFORMATION
13. CONTENT IN THE SOFTWARE AND OTHER ASSOCIATED SERVICES
You acknowledge and agree that all Content is the sole responsibility of the person from which such Content originated. You acknowledge and agree that Content presented to you as part of the Software and Associated Services, including but not limited to advertisements and sponsored Content, may be protected by intellectual property rights that are owned by the sponsors or advertisers who provide that Content to Nematrian (or by other persons on their behalf). You may not modify, rent, lease, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Nematrian or by the owners of that Content, in a separate agreement. Nematrian reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Software or Associated Services. You understand that by using the Software and Associated Services
you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Software and Associated Services at your own risk. You agree that you are solely responsible for (and that Nematrian has no responsibility to you or any third party for) any Content that you create, transmit or display while using the Software or Associated Services and for the consequences of your actions (including any loss or damage that Nematrian may suffer) by doing so.
You acknowledge and agree that Nematrian may benefit from advertising revenue and that the Software and Associated Services may display advertisements and promotions. These advertisements may be targeted to the content of information stored in the Software and Associated Services, or to queries made through the Software or Associated Services or other information. The manner, mode and extent of advertising by Nematrian on the Software and Associated Services are subject to change without specific notice to you. Some of the Software and Associated Services may be made available to you without charge. In consideration for Nematrian granting you access to and use of these parts of the Software and Associated Services, you agree that Nematrian may place such advertising on the Software and Associated Services and may also collect information relating to you (including personal information) which may influence the Advertisements shown to you as you make use of the Software and Associated Services. Some of the Software and Associated Services may be available only to certain users who have previously agreed to pay Nematrian fees for such availability. Additional terms and conditions on which Nematrian makes available these parts of the Software and Associated Services to these users are governed by separate supplemental agreements between the users concerned and Nematrian.
15. OTHER CONTENT
The Software and Associated Services may include hyperlinks to other websites or content or resources. You acknowledge that Nematrian may have no control over any websites or resources that are provided by companies or persons other than Nematrian. You acknowledge and agree that Nematrian is not responsible for the availability of any such external sites or resources and does not endorse any advertising, products or other material available from such websites or resources. You acknowledge and agree that Nematrian is not liable for any loss or damage that may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other material on, or available from, such websites or resources.
If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
This Agreement is the entire agreement between you and Nematrian relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. It is important that you take the
time to read this Agreement carefully.
18. THIRD PARTIES
Sometimes, when you use the Software and Associated Services you may (as a result of or through your use of the Software and Associated Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, this Agreement does not affect your legal relationship with these other companies or individuals. The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Xxx 0000 by any person who is not a party to this Agreement.
19. NOTICES, RIGHTS AND CHANGES TO TERMS
You agree that Nematrian may provide you with notices, including those regarding changes to this Agreement, by email, normal post or postings on the Software or Associated Services. You agree that Nematrian may make changes to this Agreement from time to time. When these changes are made, Nematrian will make a new copy available at xxxx://xxx.xxxxxxxxx.xxx/XxxxxxxXxxxxxxxx.xxxx.
You understand and agree that if you use the Software or Associated Services after the date on which the terms have changed then Nematrian will treat your use as acceptance of the updated terms and conditions. You agree that if Nematrian does not exercise or enforce any legal right or remedy that is contained in this Agreement (or which Nematrian has the benefit of under any applicable law), this will not be taken to be a formal waiver of Nematrian’s rights and that those rights or remedies will still be available to Nematrian.
You may not assign this Agreement nor any of its rights or obligations hereunder nor sub-license the use (in whole or in part) of the Software without the prior consent of the Licensor.
21. GOVERNING LAW
This Agreement is governed by and interpreted in accordance with English law. Any disputes or claims relating to this Agreement shall be subject to the exclusive jurisdiction of the English Courts.
For inquiries please contact: Licensing Officer
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Version dated 29 September 2017