TERMS AND CONDITIONS
IMPORTANT NOTICE: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING ANY SOFTWARE FROM THIS WEBSITE. WE ADVISE YOU PRINT OUT A COPY FOR YOUR FUTURE REFERENCE.
1. INTRODUCTION
1.1 This Agreement is between you (“you” or “Customer”) and ClearSpeed Technology PLC of 3110 Great Western Court, Hunts Ground Road, Bristol BS34 8HP (“we” or “ClearSpeed”).
1.2 ClearSpeed shall make available the BASE PACKAGE which shall contain the RUNTIME SOFTWARE v3.0 and CSXL LIBRARY v3.0 (collectively “Software”) and the Documentation as defined below for the Customer to download, subject to the terms of this Agreement.
1.3 BY CLICKING THE “ACCEPT” BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE. IF YOU DO NOT AGREE WITH THE TERMS WE DO NOT WISH TO PROVIDE YOU WITH THE SOFTWARE AND YOU SHOULD PRESS THE “DECLINE” BUTTON.
2. DEFINITIONS AND INTERPRETATION
2.1 The following terms shall be defined as follows, unless the context requires otherwise:
“Documentation” means any documentation available with the Software;
“Derivative Works” means the use of the Software as a tool to develop software products for use by the Customer;
“Force Majeure Event” includes any act, event, non happening, omission or accident beyond the reasonable control of ClearSpeed and includes the following: strikes, lock-outs or other industrial action, civil commotion, riot, invasion, terrorist attack (actual or threatened), war (whether or not declared), threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; unavailability of railways, shipping, aircraft, motor transport or other means of public or private transport, public or private telecommunications networks; acts, decrees, legislation, regulations or restrictions of any government;
“Initial Support Term” means 1 year commencing on the date you login and register via the Support Website subject to clauses 6 and 9;
“Intellectual Property Rights” means all intellectual property rights of any nature whatsoever throughout the world including any:
(a) (i) patent rights, registered trade marks, copyright, designs and any and all applications for registration of any of the same wheresoever made; (ii) unregistered patents, trade marks, copyright and designs;
(b) know how and trade secrets howsoever arising; and
(c) database rights and semi-conductor rights and any right or interest in any of the foregoing, together with rights of the same or similar effect or nature as those listed in paragraphs (a), (b) and (c), in each case in any jurisdiction;
“Licence Period” shall be perpetual commencing on the date you download the Software;
“Permitted Computer” means any single electronic device with one or more central processing units that accepts information in a digital or similar form and converts the same for a specific result based on a sequence or set of instructions, which is owned or licensed to you and operates solely within your premises;
“Permitted Users” means multiple employees or consultants of the Customer who are authorised to use the Software in accordance with these terms;
“Products” means the Software and Documentation;
“Service Agreement” means the agreement completed between you and ClearSpeed relating to support services for the Software during the Initial Support Term;
“Support Website” means http://support.clearspeed.com.
2.2 The terms “include” and “including” shall be construed without limitation to the words that precede them.
2.3 Any reference to the plural shall include a reference to the singular and vice versa, unless the context otherwise requires.
2.4 Any references to statutes or statutory provisions shall include any amendments, re-enactments, orders, regulations, instruments or any subordinate legislation under the relevant statute or statutory provision.
3. GRANT AND SCOPE OF LICENCE
3.1 In consideration of you accepting these terms, ClearSpeed grants to the Customer a limited, non exclusive, non transferable licence to use the Software and the Documentation, worldwide during the Licence Period, subject to these terms.
3.2 You may:
3.2.1 Download, install and make the Software available to Permitted Users on multiple Permitted Computers as you require, for your own lawful internal business purposes only;
3.2.2 Download and save the Documentation and make available to Permitted Users on Permitted Computers for your own lawful internal business purposes only;
3.2.3 Make one copy of the Software and one copy of the Documentation for back up purposes only and solely for the activities permitted at clause 3.2.1 and 3.2.2;
3.2.4 Use any updates of the Software as may be provided by ClearSpeed from time to time in accordance with the Service Agreement.
3.3 The Customer shall be entitled to produce Derivative Works for its own lawful business use subject to the terms of clause 5.
3.4 Any use of the Products other than as expressly provided by these terms is expressly prohibited.
4. CUSTOMERS UNDERTAKINGS
4.1 The Customer undertakes that the Customer and its Permitted Users shall not (and shall not authorise any third party to):
4.1.1 Copy the Products except where such copying is necessary for the purpose of back up or security or as otherwise permitted by law;
4.1.2 Rent, lease, sub-licence or loan the Products;
4.1.3 Subject to clause 5, make alterations to, or modifications of, the whole or any part of the Software, translate, merge, adapt, vary re-write (whether in the same or a different language) nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs or products:
4.1.4 Subject to clause 5, disassemble, decompile, un-bundle, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing to the Software except to the extent permitted by section 296A Copyright Designs and Patents Act 1988 (as amended) namely that 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 the above:
(a) Is only used for the purposes of achieving inter-operability of the Software with another software program;
(b) Is not disclosed or communicated to a third party without ClearSpeed’s written consent;
(c) Is not used to create any software which is substantially or materially similar to the Software.
4.1.5 Remove any notices or information which is on the Products, including any notices or information which relates to the Intellectual Property Rights of ClearSpeed or its licensors;
4.1.6 Attempt to access, copy or recreate the source code of the Software;
4.1.7 Do anything which does have or could have any affect on the architecture or design of the Software and/or the encryption or security measures therein;
4.1.8 Disclose, distribute or make available the Products in whole or in part (including program listings, object and source code program listings and object and source code) to any third party other than the Permitted Users;
4.1.9 Use the Products in any manner which could involve death, bodily injury, property and/or environmental damage including use in conjunction with life support systems, navigation systems, air traffic control systems, weapon systems, and aeronautical or automotive devices.
4.2 The Customer undertakes that it shall:
4.2.1 Keep all copies of the Software secure and maintain accurate and up to date records of the number and locations of the Permitted Computers, copies and Permitted Users of the Software;
4.2.2 Ensure the Products are only used on computer systems which are owned by (or licensed to) the Customer for the Permitted Users sole use at the Customers premises;
4.2.3 Ensure that all Permitted Users are made aware of these terms and agree with the Customer to comply with these terms. Notwithstanding this, the Customer shall remain liable for any breach or non performance of these terms by the Customer and/or the Permitted Users.
5. DERIVATIVE WORKS
5.1 The Software may be used to create Derivative Works. You should refer to the Documentation before developing any Derivative Works.
5.2 All Intellectual Property Rights in Derivative Works shall be owned by the Customer, subject to any underlying Intellectual Property Rights in the Products. You shall be free to distribute the Derivative Works as you see fit for your lawful business use, although you agree that you may require licences from third parties and you agree to procure the same.
6. SUPPORT SERVICES
6.1 ClearSpeed shall provide support services for the Initial Support Term subject to the terms of the Service Agreement. For the avoidance of doubt, the obligation on ClearSpeed to provide support services during the Initial Support Term is conditional on your compliance with the Service Agreement.
6.2 ClearSpeed shall provide an automated email response to any support requests made via the Support Website on any working day within 24 hours. ClearSpeed shall endeavour to provide an initial response to a support request within 3 working days from the automated response. In the event a support request is made on a non working day it shall be deemed to be received on the next working day. Working day means any day which is not a bank or national holiday in the UK and USA.
6.3 ClearSpeed makes no warranties regarding resolutions of support requests.
6.4 ClearSpeed is under no obligation to provide support services where:
6.4.1 The Customer is in breach of this Agreement or the Service Agreement;
6.4.2 ClearSpeed has in its sole discretion declared a Product (or version thereof) obsolete;
6.4.3 The Customer has not followed previous reasonable instructions by ClearSpeed given in the course of the support services.
6.5 The support services shall only be provided via the Support Website to the Permitted Users at the Customers site.
6.6 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.
6.7 You acknowledge that the Products may not be free of bugs or errors, and agree that without limitation, the existence of bugs or errors shall not constitute a breach of this Agreement.
7. INTELLECTUAL PROPERTY
7.1 The Products are protected by Intellectual Property Rights owned or licensed to ClearSpeed. The Products have been licensed (not sold) to you.
7.2 Subject to the limited licence at clause 3, ClearSpeed and its licensors reserve and retain all rights including all Intellectual Property Rights in and to the Products.
7.3 The Customer shall do all such acts as ClearSpeed may reasonably require so as to protect, and at ClearSpeed’s cost, to defend the Intellectual Property Rights in and to the Products.
7.4 Should the Products in whole or in part become or in ClearSpeed’s opinion become the subject of a legal action by a third party against ClearSpeed or you based on an allegation that the Products infringe a third party’s Intellectual Property Rights, ClearSpeed may at ClearSpeeds option and expense (but without obligation) procure for you the right to continue to use the Products, replace or modify the Products so that they become non-infringing or terminate the licence granted herein. ClearSpeed shall have no liability for any refund or damages, costs or otherwise arising from the exercise of such right.
8. LIMITATION OF LIABILITY
8.1 ClearSpeed shall not be liable under or in connection with these terms for:
8.1.1 Loss of income;
8.1.2 Loss of business profits or contracts;
8.1.3 Business interruption;
8.1.4 Loss of the use of money or anticipated savings;
8.1.5 Loss of information;
8.1.6 Loss of opportunity, goodwill or reputation;
8.1.7 Loss or damage to or corruption of data; or
8.1.8 Any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
8.2 Nothing in these terms shall exclude or in any way limit ClearSpeeds liability for fraud, death or personal injury caused by negligence or any other liability to the extent that it may not be excluded or limited as a matter of law.
8.3 To the extent permitted by law, ClearSpeed makes no warranties whatsoever about the Products, including any warranties which relate to merchantability, functionality, performance, operability, free from defects, non infringement and/or fitness for purpose. Any condition, warranty, representation or term concerning the supply of the Products which might otherwise be implied into, or incorporated in, these terms whether by statute, common law or otherwise is hereby excluded to the fullest extent permitted by law.
8.4 Subject to clauses 7.4, 8.1 and 8.2, ClearSpeed’s maximum aggregate liability under these terms in connection with this Agreement whether in contract, tort (including negligence) or otherwise shall be limited to £100 English Pounds in respect of any such claim or otherwise.
8.5 The parties acknowledge that the limitation of liability in this clause 8 and in other clauses of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which ClearSpeed would not have entered this Agreement. The pricing reflects this allocation of risk and the limitations specified herein.
9. TERM AND TERMINATION
9.1 ClearSpeed may terminate this Agreement (which shall include the licence at clause 3) immediately by written notice if you:
9.1.1 commit a breach of this Agreement which is not capable of remedy (or, in the case of a breach capable of remedy, shall not have remedied such breach within 14 days of receipt of a notice identifying the breach and requiring its remedy);
9.1.2 have a procedure commenced with a view to the winding up or re-organisation of your business (other than for the purpose of a solvent amalgamation or reconstruction) and that procedure is not terminated or discharged within 30 days;
9.1.3 have a procedure commenced with a view to the appointment of an administrator (including the filing of documents with the court for the appointment of any administrator and the giving of a notice of an intention to appoint an administrator by a company or the directors of a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986)), receiver, administrator receiver or trustee in bankruptcy in relation to all or substantially all of your assets and that procedure is not terminated or discharged within 30 days;
9.1.4 have a holder of security over all or substantially all of your assets take any step to enforce that security and that enforcement is not discontinued within 30 days;
9.1.5 have an attachment, sequestration, execution or any other similar process exercised over all or substantially all of your assets and such process is not terminated or discharged within 30 days;
9.1.6 are unable to pay your debts as they fall due or enter into a composition or arrangement with creditors;
9.1.7 cease or threaten to cease wholly or substantially to carry on your business, other than for the purpose of a solvent amalgamation or reconstruction; and/or
9.1.8 have any action that is similar or analogous to any of the foregoing taken against you in any other jurisdiction.
9.2 On termination or expiry of the Licence Period:
9.2.1 All rights granted to you under these terms shall cease;
9.2.2 You must cease all activities authorised by these terms;
9.2.3 You must immediately delete or remove the Products from all Permitted Computers in your possession, and immediately destroy or (at ClearSpeed’s election) return to ClearSpeed all copies of the Products in your possession, custody or control and, in the case of destruction, certify to ClearSpeed that you have done the same.
9.3 Termination or expiry of this Agreement (in whole or in part) shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date thereof and in particular but without limitation, the right to recover damages against the other.
10. FORCE MAJEURE
10.1 ClearSpeed shall not be liable or responsible for any failure to perform or delay in performance of any obligations that is caused by a Force Majeure Event.
10.2 ClearSpeed’s performance under these terms shall be deemed to be suspended for any period during which a Force Majeure Event continues and we shall extend the time for performance for the duration of that period.
11. GENERAL
11.1 This Agreement constitutes the whole agreement relating to the subject herein and supersedes any prior drafts, quotations or agreements relating to the subject matter herein.
11.2 No variation of this Agreement shall be effective unless made in writing and signed by each of the parties.
11.3 The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law or otherwise.
11.4 No breach by any party of any provision of this Agreement shall be waived or discharged except with the express written consent of the other parties.
11.5 No failure or delay by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of that right, power or privilege and no single or partial exercise by any party of any right, power or privilege shall preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
11.6 The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
11.7 If any provision of this Agreement is held by any competent court or regulatory authority to be void or unenforceable in whole or in part and such provision is not fundamental to the commercial purpose of this Agreement, this Agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question and the parties shall negotiate in good faith (a) replacement term(s) for the affected provision in order to achieve as closely as possible the original intentions of the parties.
11.8 All notices, consents, waivers or other communications given under this Agreement shall be in writing and shall be given by personal delivery, recorded first class delivery or facsimile. Notice given by personal delivery shall be delivered to the address of the relevant party as set forth above or provided to ClearSpeed and shall be deemed to have been served at the time of delivery. Notice given by recorded first class delivery shall be deemed to have been served at the expiration of forty-eight (48) hours after postage. Notice given by facsimile shall be deemed to have been given when transmitted provided that the sender shall have received a transmission report indicating that all pages of the notice have been transmitted to the correct facsimile number. Each party may vary its address for service by notice as aforesaid.
11.9 The Customer shall be liable for all present or future customs duties, governmental charges or any sales, use, excise, value added, or other similar or replacement taxes applicable to the sale or use by the Customer of the Products (excluding taxes levied at ClearSpeed’s income). If applicable, Customer shall provide ClearSpeed with an appropriate tax exemption certificate.
11.10 The terms of this licence to the Customer is personal to the Customer. This Agreement (including the licence) shall not be assigned, licensed, sub-licensed or transferred to any third party without the prior written approval of ClearSpeed.
11.11 ClearSpeed shall be entitled to assign, transfer or in any manner make over the benefit and/or burden of this Agreement (including any Intellectual Property Rights) to any third party.
11.12 This Agreement shall be binding upon the successors and assigns of the parties hereto and the name of a party appearing herein shall be deemed to include the names of its successors and assigns provided always that nothing shall permit any assignment, transfer or sub-licence by either party except as expressly provided herein.
11.13 This Agreement shall be governed by and construed in accordance with English law to the sole and exclusive jurisdiction of whose courts the parties hereby agree to submit.
