Datapath SDK

Datapath SDK license

This licence agreement (Licence) is a legal agreement between you (Licensee or you) and DATAPATH LIMITED of
our contact address shown on www.datapath.co.uk (Licensor or we) for this software product (Software), which
includes computer software, the data supplied with it, the associated media, and online or electronic documentation
(Documentation).
BY CLICKING ON THE “ACCEPT” BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH
WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE
ARE UNWILLING TO LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU AND YOU MUST
DISCONTINUE THE DOWNLOADING/LOADING PROCESS NOW BY CLICKING ON THE “REJECT” BUTTON
BELOW. IN THIS CASE YOU MAY NOT DOWNLOAD OR ORDER THIS SOFTWARE AND YOU MUST RETURN
ALL ACCOMPANYING DOCUMENTATION TO THE DISTRIBUTOR WHERE YOU PURCHASED THEM,
TOGETHER WITH PROOF OF PAYMENT WITHIN 28 DAYS OF PURCHASE. IF YOU DO THIS YOUR LICENCE
FEE WILL BE REFUNDED. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A CORPORATE
LICENSEE, YOU REPRESENT THAT YOU ARE AUTHORISED TO DO SO. IF YOU ARE NOT SO AUTHORISED,
NOR DEEMED IN LAW TO HAVE SUCH AUTHORITY, YOU ASSUME SOLE PERSONAL LIABILITY FOR THE
OBLIGATIONS SET OUT IN THIS LICENCE.
1. GRANT AND SCOPE OF LICENCE
1.1. In consideration of payment by you of the agreed licence fee and you agreeing to abide by the
terms of this Licence, the Licensor hereby grants to you a non-exclusive, non-transferable licence
to use the Software and the Documentation on the terms of this Licence.
1.2. You may:
1.2.1. download, install and use the Software for your internal business purposes only
either (as agreed between the parties):
1.2.1.1. on one CPU if the Licence is a single-user licence or the
Software is for single use; or
1.2.1.2. if the Licence is a multi-user or network licence, by the
number of concurrent users agreed between you and us;
1.2.2. make up to 1 copy of the Software for back-up purposes only, provided that this
is necessary for the activities permitted under condition 2.1;
1.2.3. receive and use any free supplementary software code or update of the Software
incorporating “patches” and corrections of errors as may be provided by the
Licensor from time to time on the same basis as and part of the Software;
1.2.4. use any Documentation in support of the use permitted under condition 1.1 and
make up to 2 copies of the Documentation as are reasonably necessary for its
lawful use.
2. LICENSEE’S UNDERTAKINGS
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 Documentation except where such copying is
incidental to 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 Documentation;
2.1.3. not to make alterations to, or modifications of, the whole or any part of the
Software, nor permit the Software or any part of it 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:
2.1.4.1. is used only for the purpose of achieving inter-operability of
the Software with another software program; and
2.1.4.2. is not unnecessarily disclosed or communicated without the
Licensor’s prior written consent to any third party; and
2.1.4.3. 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-todate
records of the number and locations of all copies of the Software;
2
2008966.1.8377370
2.1.6. to supervise and control use of the Software and ensure that the Software is
used by your employees and representatives in accordance with the terms of this
Licence;
2.1.7. to replace the current version of the Software with any updated or upgraded
version or new release provided by the Licensor under the terms of this Licence
immediately on receipt;
2.1.8. to include the copyright notice of the Licensor on all entire and partial copies you
make of the Software on any medium;
2.1.9. 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 without prior written consent from the Licensor;
2.1.10. not to use the Software via any communications network or by means of remote
access.
2.2. You must permit the Licensor and his representatives, at all reasonable times and on reasonable
advance notice, to inspect and have access to any premises at which the Software or the
Documentation is being kept or used, to the computer equipment located there, and to any
records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the
terms of this Licence.
3. DEVELOPMENTS
3.1. To the extent that the Software comprises or contains development tools (Tools), you may use
those Tools to configure, modify, enhance and/or deploy the Software provided that you do so
without making any unauthorised de-compilation or disassembly. The Tools may not be
transferred, either in whole or in part, into any other software.
3.2. You shall own all intellectual property rights in any modifications or enhancements of the
Software created by you pursuant to condition 3.1 but you shall not acquire any intellectual
property rights in the Tools.
3.3. Nothing contained in this clause 3 shall restrict our development activities in any way.
3.4. You use the Tools at your own risk. We shall have no liability for any malfunctioning of the
Software, or for any loss or damage suffered or sustained by you, arising from modifications or
enhancements of the Software made by you using the Tools.
3.5. It shall be your sole responsibility to maintain compatibility between any modifications or
enhancements of the Software made by you and any patches, updates, upgrades or new
releases made available by us to you from time to time.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. You acknowledge that, except as provided in condition 3.2 above, all intellectual property rights
in the Software and the Documentation anywhere in the world belong to the Licensor, that rights
in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software
or the Documentation other than the right to use them in accordance with the terms of this
Licence.
4.2. You acknowledge that, except to the extent that we provide source code to you, you have no
right to have access to the Software in source code form or in unlocked coding or similar.
4.3. The integrity of this Software is protected by technical protection measures (TPM) so that the
intellectual property rights, including copyright, in the Software of the Licensor 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.
5. WARRANTY
5.1. The Licensor warrants that:
5.1.1. for a period of 90 days from the date of installation (Warranty Period) the
Software will, when properly used and on an operating system for which it is
designed, perform substantially in accordance with the functions described in the
Documentation, and that the Documentation correctly describes the operation of
the Software in all material respects;
5.1.2. it has tested the Software for viruses using commercially available virus-checking
software, consistent with current industry practice.
5.2. 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 Documentation meet your requirements.
5.3. You acknowledge that the Software may not be free of bugs or errors, and agree that the
existence of minor errors shall not constitute a breach of this Licence.
5.4. If, within the Warranty Period, you notify the Licensor in writing of any defect or fault in the
Software in consequence of which it fails to perform substantially in accordance with the
Documentation, and such defect or fault does not result from you having amended the Software
or used it in contravention of the terms of this Licence, the Licensor will, at its sole option, either
repair or replace the Software, provided that you make available all the information that may be
necessary to help the Licensor to remedy the defect or fault, including sufficient information to
enable the Licensor to recreate the defect or fault.
3
2008966.1.8377370
6. LICENSOR’S LIABILITY
6.1. Nothing in this Licence shall exclude or in any way limit the Licensor’s liability for fraud, or for
death or personal injury caused by its negligence, or any other liability to the extent that it may
not be excluded or limited as a matter of law.
6.2. Subject to condition 6.1 the Licensor shall not be liable under, or in connection with, this Licence
or any collateral contract for:
6.2.1. loss of business profits or contracts;
6.2.2. business interruption;
6.2.3. loss of the use of money or anticipated savings;
6.2.4. loss of information;
6.2.5. loss of opportunity, goodwill or reputation;
6.2.6. loss of, damage to or corruption of data; or
6.2.7. any indirect or consequential loss or damage of any kind howsoever arising and
whether caused by tort (including without limitation negligence), breach of
contract or otherwise.
6.3. Subject to condition 6.1 and condition 6.2, the Licensor’s maximum aggregate liability
under or in connection with this Licence, or any collateral contract, whether in contract,
tort (including without limitations negligence) or otherwise, shall be limited to a sum that
is the greater of (1) net price paid by you to us under the Licence and (2) £10,000. If it is
found that to limit our liability to this amount is unfair then we shall only be liable to you
for the matter described in this Condition for up to the amount of relevant insurance cover
that we have from time to time .
6.4. Subject to condition 6.1, condition 6.2 and condition 6.3, the Licensor’s liability for infringement of
third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
6.5. THIS LICENCE SETS OUT THE FULL EXTENT OF THE LICENSOR’S OBLIGATIONS AND
LIABILITIES IN RESPECT OF THE SUPPLY OF THE SOFTWARE AND DOCUMENTATION.
IN PARTICULAR, THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR
OTHER TERMS, EXPRESS OR IMPLIED, THAT ARE BINDING ON THE LICENSOR EXCEPT
AS SPECIFICALLY STATED IN THIS LICENCE. ANY CONDITION, WARRANTY,
REPRESENTATION OR OTHER TERM CONCERNING THE SUPPLY OF THE SOFTWARE
AND DOCUMENTATION WHICH MIGHT OTHERWISE BE IMPLIED INTO, OR
INCORPORATED IN, THIS LICENCE, OR ANY COLLATERAL CONTRACT, WHETHER BY
STATUTE, COMMON LAW OR OTHERWISE, IS HEREBY EXCLUDED TO THE FULLEST
EXTENT PERMITTED BY LAW.
7. TERMINATION
7.1. The Licensor may terminate this Licence immediately by written notice to you if:
7.1.1. 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; or
7.1.2. a petition for a bankruptcy order to be made against you has been presented to
the court; or
7.1.3. the Licensee (where it is a company) becomes insolvent or unable to pay its
debts (within the meaning of section 123 of the Insolvency Act 1986), enters into
liquidation, whether voluntary or compulsory (other than for reasons of bona fide
amalgamation or reconstruction), passes a resolution for its winding-up, has a
receiver or administrator manager, trustee, liquidator or similar officer appointed
over the whole or any part of its assets, makes any composition or arrangement
with its creditors or takes or suffers any similar action in consequence of its debt,
unable to pay your debts (within the meaning of section 123 of the Insolvency Act
1986).
7.1.4. anything analogous to anything in 7.1.2 or 7.1.3 above occurs or applies in any
other jurisdiction.
7.2. Upon termination for any reason:
7.2.1. all rights granted to you under this Licence shall cease;
7.2.2. you must cease all activities authorised by this Licence;
7.2.3. you must immediately pay to the Licensor any sums due to the Licensor under
this Licence; and
7.2.4. you must immediately delete or remove the Software from all computer
equipment in your possession, and immediately destroy or return to the Licensor
(at the Licensor’s option) all copies of the Software then in your possession,
custody or control and, in the case of destruction, certify to the Licensor that you
have done so.
8. TRANSFER OF RIGHTS AND OBLIGATIONS
8.1. This Licence is binding on you and the Licensor, and on our respective successors and permitted
assigns.
8.2. You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or
obligations arising under it, without our prior written consent.
8.3. We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our
rights or obligations arising under it, at any time during the term of the Licence.
4
2008966.1.8377370
9. NOTICES
9.1. All notices given by you to us must be given to us at the address referred to above. We may give
notice to you at either the e-mail or postal address you provided to us or our distributor when
purchasing the Software. Notice will be deemed received and properly served immediately when
posted on our website, 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 email,
that such e-mail was sent to the specified e-mail address of the addressee.
10. EVENTS OUTSIDE OUR CONTROL
10.1. 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 events outside our reasonable control (Force
Majeure Event).
10.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our
reasonable control and includes in particular (without limitation) the following:
10.2.1. strikes, lock-outs or other industrial action;
10.2.2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war
(whether declared or not) or threat or preparation for war;
10.2.3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural
disaster;
10.2.4. impossibility of the use of railways, shipping, aircraft, motor transport or other
means of public or private transport;
10.2.5. impossibility of the use of public or private telecommunications networks;
10.2.6. the acts, decrees, legislation, regulations or restrictions of any government.
10.3. Our performance under this Licence is deemed to be suspended for the period that the Force
Majeure Event continues, and we will have an extension of time for performance for the duration
of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a
close or to find a solution by which our obligations under this Licence may be performed despite
the Force Majeure Event.
11. WAIVER
11.1. If we fail, at any time during the term of this Licence, to insist upon strict performance of any of
your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which
we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies
and shall not relieve you from compliance with such obligations.
11.2. A waiver by us of any default shall not constitute a waiver of any subsequent default.
11.3. No waiver by us of any of these terms and conditions shall be effective unless it is expressly
stated to be a waiver and is communicated to you in writing.
12. SEVERABILITY
12.1. If any of the terms of this Licence are determined by any competent authority to be invalid,
unlawful or unenforceable to any extent, such term, condition or provision will to that extent be
severed from the remaining terms, conditions and provisions which will continue to be valid to the
fullest extent permitted by law.
13. ENTIRE AGREEMENT
13.1. This Licence and any document expressly referred to in it represents the entire agreement
between us in relation to the licensing of the Software and Documentation and supersedes any
prior agreement, understanding or arrangement between us, whether oral or in writing.
13.2. We each acknowledge that, in entering into this Licence, neither of us has relied on any
representation, undertaking or promise given by the other or be implied from anything said or
written in negotiations between us prior to entering into this Licence except as expressly stated in
this Licence.
13.3. Neither of us or the Licensor’s distributor shall have any remedy in respect of any untrue
statement made by the other, whether orally or in writing, prior to the date we entered into this
Licence (unless such untrue statement was made fraudulently) and the other party’s only remedy
shall be for breach of contract as provided in these terms and conditions.
14. LAW AND JURISDICTION
14.1. This Licence and any disputes arising out of or in connection with it or its subject matter or
formation (including non-contractual disputes) are governed by and construed in accordance with
English law. Any dispute arising from, or related to, any term of this Licence, its subject matter or
formation (including non-contractual disputes) shall be subject to the exclusive jurisdiction of the
courts of England and Wales.
15. EXPORT – USE AND CONTROL
15.1. The Software must not be used, wholly or in part, in connection with the development,
identification or dissemination of chemical, biological or nuclear weapons or the development,
production, maintenance or storage of missiles capable of delivering such weapons or in any
application or system where the failure of the software to perform can reasonably be expected to
5
2008966.1.8377370
result in personal injury or loss of life. Any breach of this clause 15.1 shall be a material breach
of the Licence incapable of remedy.
15.2. This Licence is expressly made subject to any regulations, orders, or other restrictions on the
export from the UK of the Software or information about such Software, which may be, imposed
from time to time by the UK government.
Version [09/10/13]