MUTINY LIMITED, OF 145-157 St. John Street London EC1V 4PW ("WE") OWN OR ARE THE LAWFUL LICENSEES OF THE COPYRIGHT, TRADEMARK, TRADE NAMES, PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS SUBSISTING IN OR USED IN CONNECTION WITH THE SOFTWARE KNOWN AS MUTINY NETWORK SERVICES MONITOR, WHICH HAS BEEN INSTALLED ON YOUR COMPUTER EQUIPMENT AS A VALUE ADDED ITEM, AND INCLUDING ALL DOCUMENTATION AND MANUALS AND ALL OTHER COPIES WHICH YOU ARE AUTHORISED UNDER THIS AGREEMENT TO MAKE ('THE SOFTWARE'). IT IS UNLAWFUL TO USE THE SOFTWARE ON A COMPUTER WITHOUT OUR LICENCE OR VALID SOFTWARE SUPPORT AGREEMENT IN PLACE. WE ARE WILLING TO LICENSE THE SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL THE TERMS CONTAINED IN THIS LICENCE AGREEMENT. PLEASE READ THIS LICENCE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU SHOULD NOT USE THE SOFTWARE. IN SUCH CASE YOU SHOULD, WITHIN 14 DAYS OF PURCHASE, CONTACT YOUR SUPPLIER OR US AND ARRANGE FOR THE RETURN OF THE COMPUTER EQUIPMENT ON WHICH THE SOFTWARE WAS INSTALLED AND SUPPLIED TO YOU, AND ALL ACCOMPANYING ITEMS TO YOUR SUPPLIER OR US WITH PROOF OF PURCHASE FOR REMOVAL OF THE SOFTWARE FROM THE COMPUTER EQUIPMENT.
In consideration of your agreement to the terms of this Agreement, we grant you an exclusive right to use the Software in accordance with Clause 2 below. This licence is personal to you as the purchaser of the Software Licence and the licence granted herein is for your benefit only.
2. PERMITTED USE
As licensee of the authorised copy of the Software, you may, subject to the following conditions:
2.1 use the Software on a single computer which is under your control;
2.2 use the Software for your internal business purposes only and not for or on behalf of third parties unless supported by an additional reseller or managed services agreement;
2.3 copy the Software for backup and archival purposes and make up to two copies of the documentation (if any) accompanying the Software, provided that the original and each copy is kept in your possession and that your use of the Software does not exceed that allowed by this Agreement;
3. RESTRICTIONS ON USE
You may not nor permit others to:
3.1 load the Software into two or more computers at the same time unless licensed separately;
3.2 sub-license, assign, rent, lease or transfer the licence or the Software or make or distribute copies of the Software except as permitted by this or additional reseller Agreements;
3.3 translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Software except as permitted by law;
3.4 make copies of the Software, in whole or part, except for backup or archival purposes as permitted hereunder;
3.5 use any backup copy of the Software for any purpose other than to replace the original copy in the event that it is destroyed or becomes defective;
3.6 copy the written materials (except as provided by this Agreement) accompanying the Software;
3.7 adapt, modify, delete or translate the written material accompanying the Software in any way for any purpose whatsoever;
3.8 vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Software.
You undertake to:-
4.1 ensure that, prior to use of the Software by your employees or agents, all such parties are notified of this licence and the terms of this Agreement;
4.2 reproduce and include our copyright notice (or such other party's copyright notice as specified on the Software) on all and any copies of the Software, including any partial copies of the Software;
4.3 hold all drawings, specifications, data (including object and source codes), software listings and all other information relating to the Software confidential and not at any time, during this licence or after its expiry, disclose the same, whether directly or indirectly, to any third party without our consent.
We at all times retain ownership of the Software.
6.1 Subject to Clause 6.2, we warrant that for a period of 90 days from the date of your purchase of the Software ('the Warranty Period") the Software installed on your computer will materially conform to the documentation that accompanies the Software. If the Software fails to operate in accordance with this warranty, you may, as your sole and exclusive remedy, return your computer and the documentation to us or to your supplier during the Warranty Period, along with dated proof of purchase, specifying the problem, and we either install a new version of the Software or will compensate you to the retail value of the Software (at our option).
6.2 We shall not be liable under the warranty given in Clause 6.1 above if the Software fails to operate in accordance with the said warranty as a result of any modification, variation, or addition to the Software not performed by us or caused by any abuse, corruption or incorrect use of the Software, including use of the Software with equipment or other software which is incompatible or where the performance of a virtual host is not sufficient for the Mutiny system to operate correctly.
We do not warrant that the Software will meet your requirements or that its operation will be uninterrupted or error free. We exclude and hereby expressly disclaim all express and implied warranties or conditions not stated herein (including without limitation, loss of profits, loss or corruption of data, business interruption or loss of contracts), so far as such exclusion or disclaimer is permitted under the applicable law.
THIS AGREEMENT DOES NOT AFFECT YOUR STATUTORY RIGHTS. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR CERTAIN KINDS OF LIMITATIONS OR EXCLUSIONS OF LIABILITY, SO THE ABOVE LIMITATIONS & EXCLUSIONS MAY NOT APPLY TO YOU.
Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the above limitations and exclusions shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. If any part of the above limitations or exclusions is held to be void or unenforceable, such part shall be deemed to be deleted from this Agreement and the remainder of the limitation or exclusion shall continue in full force and effect. Any rights which you may have as a consumer (i.e. a purchaser for private as opposed to business, academic or government use) are not affected.
8.1 Our liability to you for any losses shall not exceed the retail value of the Software.
8.2 In no event will we be liable to you for any indirect or consequential damages even if we have been advised of the possibility of such damages. In particular, we accept no liability for any programs or data made or stored with or processed by the Software nor for the costs of recovering or replacing such programs or data.
8.3 Nothing in this Agreement limits liability for fraudulent misrepresentation or our liability to you in the event of death or personal injury resulting from our negligence.
8.4 You hereby acknowledge and agree that the retail value of the Software has been determined on the basis of the exclusions from and limitations of liability contained in this Licence Agreement, that its pre-installation is at no cost to you and that the limitations contained in this Clause are therefore reasonable in light of all the circumstances.
9.1 The Agreement and the licence hereby granted to use the Software automatically terminates if you:
9.1.1 fail to comply with any provisions of this Agreement;
9.1.2 commit a material breach of this Agreement and fail to remedy such breach within thirty (30) days of receipt of notice of the breach;
9.1.3 destroy the copies of the Software in your possession; or
9.1.4 voluntarily return the Software to us.
9.1.5 fail to renew or purchase an annual software maintenance agreement within 60 days of the software being licenced or the expiration of the previous maintenance agreement..
9.2 In the event of termination in accordance with Clause 9.1 you must destroy or delete all copies of the Software from all computer equipment and/or storage media in your control.
In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either you or us from any relevant competent authority, we shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or, at our discretion, such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
11. ENTIRE AGREEMENT
You have read and understand this Agreement and agree that it constitutes the complete and exclusive statement of the Agreement between us with respect to the subject matter hereof and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating thereto.
This Agreement is personal to you and you may not assign, transfer, sub-contract or otherwise part with this Agreement, the Software or any right or obligation under this Agreement without our prior written consent.
Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party's rights nor in any way affect the validity of the whole or part of this licence nor prejudice that party's right to take subsequent action.
14. LAW AND DISPUTES
This Agreement and all matters arising from it are governed by and construed in accordance with the laws of England and Wales whose courts shall have exclusive jurisdiction over all disputes arising in connection with this Agreement and the place of performance of this Agreement is agreed by you to be England.
If you have any questions about this Agreement, write to us at Mutiny Technology - PO Box 406, Dartford, UK, DA1 9JW or create a new contact ticket.