» version 9 - posted on 2008-08-26
EULA - End User License Agreement
Welcome to Miracle Type® - End User License Agreement (EULA)
This is a legal agreement between you, the Licensee, and Miracle Type Limited (hereinafter called the Licensor). By purchasing and installing this software, you are agreeing to be bound by the terms of this agreement.
1.1 The Licensed Material means any content provided by the Licensor to the Licensee pursuant to this Agreement contained on compact disc read only memory disks ("CD-ROM disks") or floppy disks or any other electronic or magnetic media ("the delivery media") together with any enhancements by way of tagging, coding or conversion, including but not limited to:
(a) Any ancillary, Help or documentation files provided;
(b) Any updated versions ("Updates"); and
(c) Any Online Material, meaning any updating or ancillary material held online which relates to the Product and to which access may be provided by the Licensor to the Licensee pursuant to this Agreement.
1.2 The Software means the programs and ancillary files provided by the Licensor for the purpose of accessing, searching, displaying, printing or otherwise manipulating the Licensed Material, including software licensed from third parties.
1.3 The Product means the Licensed Material and the Software.
1.4 The Network means any system that allows access to the Product or any part thereof via any form of communications link except by remote access as defined within this Agreement.
1.5 The Local Area Network means a Network within a single site.
1.6 The Wide Area Network means a Network over more than one site.
1.7 The Site means the physical location(s) or address(es) at which the Product will be used as agreed between the Parties, or in default of such agreement shall be the Licensees principal place of business.
1.8 Remote access means any system that allows access to the Product or any part thereof or a Network on which the Product is installed via any form of remote telephone access via modem or similar device.
2. GRANT OF LICENSE
THE LICENSOR grants to you the non-exclusive right to use one copy of the accompanying software program, Miracle Type® for Windows 98, ME, 2000, XP (the "SOFTWARE") on a single terminal connected to a single computer (i.e., with a single CPU) as a Desktop application. Total number of terminal installations is determined by the licence purchased. Each installation may be used up to and including the maximum number of users determined by the licence purchased. You need a separate license for each computer (CPU). This is NOT a concurrent license. You may network the SOFTWARE within the terms of your licence agreement and use it on more than one computer terminal at the same time across a Local Area Network or Wide Area Network.
3. TERMINATION ON BREACH
3.1 The Licensor may terminate this Licence at any time immediately by written notice to the Licensee if:
(a) The Licensee has committed an irredeemable breach of this Agreement; or
(b) After the Licensee, in the Licensors reasonable opinion, has failed to remedy a remediable breach of these terms and conditions within 14 days of being given notice to do so, such termination being without notice and without prejudice to any claim which the Licensor may have either for moneys due and/or damages and/or otherwise.
3.2 In the event of termination of this Agreement under clause 5.1 the Licensee will:
(a) Cease to use the Product and remove it from any computers on which it has been installed; and
(b) Within 14 days return to the Licensor (postage paid) the Product together with any copies of the whole or part thereof.
3.3 The Licensor shall have the right to appoint an independent auditor to verify such actions and the Licensee shall co-operate with such auditor.
The SOFTWARE is owned by THE LICENSOR, and is protected by United Kingdom copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material (such as a book or musical recording). No copy may be made without prior express written authority of THE LICENSOR.
4. OWNERSHIP AND PERMITTED COPYING
4.1 The Product is not sold to the Licensee who shall not acquire any right, title or interest (including without limitation copyright or other right in the nature of copyright or any other intellectual property right whatsoever) in:
(a) The Product or any part thereof or any update to the Product or part thereof;
(b) The delivery media upon which the Product is supplied;
(c) Any documentation or material printed or otherwise transmitted under this Agreement, which shall remain the property of the Licensor or Software owner, as may be the case.
4.2 All rights in the Product whether existing or which may come into existence which are not specifically granted to the Licensee by this Agreement are expressly reserved to the Licensor.
4.3 Crown Copyright material is reproduced with the permission of the Controller of Her Majestys Stationery Office.
4.4 The Licensee shall not sublicense the Product to others and the Licensee warrants that access will not be given to the Product to any person not being an employee or partner of the Licensee, firm, company, organisation, or other entity.
4.5 The Licensee shall use its best endeavours to ensure that the Product does not fall into the hands of third parties whether as a result of theft or otherwise.
4.6 Except as permitted by law, by installation instructions supplied by the Licensor to the Licensee and by this Agreement, the Licensee shall not itself nor allow any third party to duplicate or otherwise reproduce the Product or any part thereof.
4.7 The Licensee may make one copy of the Product only for back-up purposes, which copy must be kept in the Licensees control and possession.
4.8 The Licensee may copy the Product from the delivery media onto a hard disk controlled by a standalone computer under the installation procedure provided by the Licensor and described in the Documentation. Any other transfer to disk is not permitted.
4.9 Where a Network Licence Fee has been paid, the Licensee may copy the Product onto a Network server under the installation procedure provided by the Licensor and described in the Documentation, any other transfer to disk not being permitted.
4.10 The Licensee shall be responsible for:
(a) Installing the Product and for the effectiveness of such installation; and
(b) Making backup copies of the contents of the hard disk on the standalone computer or of the Network server prior to the installation of the Product or the transfer of the Licensed Material from the delivery media to hard disk or Network server under this Clause.
5. PERMITTED AND PROHIBITED USE
5.1 The Licensor shall use the Product and shall take all reasonable steps to ensure that its employees and partners use the Product:
(a) Only for its own business purposes;
(b) On the system and at the Site(s) for which the appropriate Licence Fee and Network Licence Fee (if appropriate) is paid by the Licensee;
(c) Only for the permitted purposes set out in this Agreement.
5.2 The Licensee, its employees or partners on its behalf, for the purposes of research during the normal course of the Licensees business, may:
(a) View the Product on screen;
(b) Print extracts from the Product;
5.3 All extracts must clearly reproduce the copyright notice(s).
5.4 The Licensee shall not use the Product nor authorise the Product to be used for the purpose of operating a bureau, Training Centre, College or similar service or any online service whatsoever.
5.5 In no circumstances without the express consent of the Licensor in writing may the Product or any part thereof be used in connection with any system of remote access, other than for purposes of e-mail or fax transmission as set out in this Clause.
5.6 The Licensee shall not do or omit to do or authorise any other person to do or omit to do any act which:
(a) Would or might invalidate or be inconsistent with any Intellectual Property of the Licensor and/or Software owner in the Product and/or Software;
(b) Would be in breach of or otherwise inconsistent with the moral rights of the authors of the items comprising the Product.
5.7 The Licensee shall not erase, remove, deface or cover any trademark, trade names, numbers, copyright or other proprietary notices, guarantee, designation of origin, means of identification, disclaimer or other statement used on any media containing the Product or used in relation to it, nor shall the Licensee authorise another person to do so.
5.8 The Licensee shall promptly inform the Licensor if the Licensee becomes aware of:
(a) Any unauthorised use of the Product;
(b) Any actual, threatened, or suspected infringement of any intellectual property of the Licensor in the Product which comes to the Licensees notice; and
(c) Any claim by any third party coming to its notice that the Product infringes the intellectual property or other rights of any other Person.
5.9 The Licensee shall at the request and expense of the Licensor do all such things as may be reasonably required to assist the Licensor in taking or resisting proceedings in relation to any infringement or claim referred to in this Clause and in maintaining the validity and enforceability of the intellectual property of the Licensor in the Product.
5.10 The Licensee shall not modify, reverse assemble, decompile or reverse engineer the Product or any part thereof, or permit any third party to do so.
5.11 The Licensee shall not, except to the extent necessary to exercise the Rights granted under this Agreement without the prior written consent of the Licensor:
(a) Make any alterations, additions or amendments to the Product;
(b) Combine the whole or any part of the Product with any other software, data or material;
(c) Create derivative works from the whole or any part of the Product.
6.1 The Licensor will supply to the Licensee the Product.
6.2 The Licensor reserves the right at any time to make modifications or improvements to the Product.
6.3 The Licensor reserves the right at any time to withdraw from the Product any material included in it:
7.1 During the period of the Agreement, the Licensor will use all reasonable endeavours to supply Updates to the Product.
7.2 The Licensor reserves the right to employ hardware or software methods including timelocks to render superseded versions of the Product inoperable.
On receipt of the Updates delivered by the Licensor, the Licensee undertakes to install and use the said Updates.
7.3 Within 14 days of receipt of an Update the Licensee undertakes to destroy such disk or disks as may no longer be required as a result of the Update, according to instructions supplied with the Update.
8. ONLINE UPDATES
8.1 Where Online Updates are supplied, the Licensor:
(a) Shall use all reasonable endeavours to provide the Licensee with an uninterrupted service;
(b) Reserves the right to suspend temporarily and without notice for reasons beyond its control any Online Service provided; and
(c) Shall use all reasonable endeavours to restore access to the Online Service as soon as possible in the event of an interruption or suspension of the Service.
8.2 The Licensee shall pay all third-party telecommunications charges incurred by the Licensee in order to access any Online Service.
9. LIMITED WARRANTY
THE LICENSOR warrants that the SOFTWARE and the accompanying written materials to be free from defects in materials and workmanship for a period of 30 days from the date of purchase. Any implied warranties on the SOFTWARE are limited to 30 days. THE LICENSOR will replace any defective disk/media or documentation returned to THE LICENSOR during such warranty period. Replacement is the exclusive remedy for any such defect. THE LICENSOR shall not refund any purchase, nor shall it have any liability for any damages.
10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES
The SOFTWARE is provided by THE LICENSOR "as is". In no event shall THE LICENSOR or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or inability to use this THE LICENSOR product, even if THE LICENSOR has been advised of the possibility of such damages.
11. LICENSOR WARRANTIES
11.1 The Licensor warrants that it has obtained all necessary rights to grant this licence.
11.2 The Licensor warrants that the physical medium on which the Product Ls carried will be free from defects for a period of 30 days from delivery.
11.3 In the event of any material inherent defects in the delivery media on which the Product is supplied, other than caused by accident abuse or misuse by the Licensee, the Licensors sociability to the Licensee is to replace defective delivery media free of charge provided it is returned to the Licensor within 30 days of the purchase date.
11.4 Whilst reasonable care is taken to ensure the accuracy and completeness of the Product supplied, the Licensor makes no representations or warranties whatsoever, express or implied, that the Product is free from errors or omissions.
11.5 Whilst reasonable care has been taken to exclude computer viruses, no warranty is made that the Product is virus free. The Licensee shall be responsible to ensure that no virus is introduced to any computer or network and shall not hold the Licensor responsible.
11.6 The Product is supplied to the Licensee on an "as is" basis without any warranty that it will meet the Licensees individual requirements, it being the sole responsibility of the Licensee to satisfy itself prior to entering this Licence Agreement that the Product will meet those requirements and be compatible with the Licensees hardware/software configuration and no failure of any part or the whole of the Product to be suitable for those requirements will give rise to any right or claim against the Licensor.
11.7 The warranties set out in this clause are exclusive of and in lieu of all other warranties, conditions, terms, undertakings, and obligations implied by statute, common law, custom, trade usage, course of dealing, or otherwise, which relate to the condition and fitness for any purpose of the Product.
11.8 The Licensor shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind including without limitation any loss of revenue business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising suffered in connection with the Product (whether or not caused by the negligence of the Licensor).
11.9 The aggregate maximum liability of the Licensor in respect of any direct loss or any other loss (to the extent that such loss is not excluded by this Agreement or otherwise) whether such a claim arises in contract, tort or delict shall not exceed a sum equal to that paid as the Licence Fee or Network Licence Fee for the Product.
11.10 The Licensor will have no liability whatsoever for any liability of the Licensee to any third party which might arise.
11.11 None of the terms of this licence shall operate to:
(a) Exclude or restrict liability for death or personal injury resulting from the negligence of the Licensor or the Licensors appointed agents or employees whilst acting in the course of their employment; or
(b) Affect statutory rights where this Agreement is entered into as a consumer transaction (as defined by the Consumer Transaction (Restriction on Statements) Order 1976 as amended).
11.12 The Licensee shall accept sole responsibility for and the Licensor shall not be liable for the use of the Product by the Licensee, its agents and employees and the Licensee shall hold the Licensor harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use.
11.13 The Product is supplied without any warranty that the slogan, "Learn to Touch Type in 1 Hour" will teach the Licensee to Touch Type within or up to a period of 1 hour. The duration of 1 hour is an average based on a survey carried out over a period of time and reflects the variations that occur from individual to individual and are determined by a number of factors of which dexterity is one.
12. NO OTHER WARRANTIES
THE LICENSOR disclaims all other warranties, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the SOFTWARE and the accompanying written materials. This limited warranty gives you specific legal rights.
13. GOVERNING LAW
This Agreement is governed by International and the laws of the United Kingdom. If you have any questions in regard to this Agreement, or if you wish to reach THE LICENSOR for any reason, please write: THE LICENSOR, Attn: Software Licensing, Miracle Type Limited 11A Oakthorpe Road, London N13 5HY, United Kingdom.
14.1 Where two or more legal entities constitute the Licensor and/or the Licensee their liability shall be joint and several.
14.2 Where the Licensee is a body other than an individual the person signing or otherwise concluding this Agreement represents that s/he is authorised by the Licensee to sign it for and on behalf of the Licensee and to bind the Licensee thereby.
14.3 Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of principal and agent between the parties and the Licensee shall have no authority to bind or to make any representation or warranty on the Licensors behalf.
14.4 This written agreement together with the Order Form where appropriate constitutes the entire Agreement between the parties hereto.
14.5 If any provision of this Agreement or Order Form or part thereof shall be void for whatever reason it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
14.6 This Agreement may only be varied in writing signed by both parties.
14.7 Neither this Agreement nor any of the rights and obligations of the Licensee hereunder may be assigned, transferred, charged, delegated, sublicensed, or otherwise disposed of in whole or in part on a temporary or permanent basis unless the Licensee has obtained the prior written consent of the Licensor.
14.8 Any notice given by one party pursuant to this Agreement may be served at the address of the other and such notice shall be deemed to have been duly received by the addressee three days posting by correctly addressed and prepaid first class post or immediately if delivered personally.
14.9 Neither party shall be liable for any loss suffered by the other or be deemed to be in default for any delays or failures in performance (other than failure to make payments) hereunder resulting from acts or causes beyond its reasonable control.
14.10 Headings used in this Agreement are for ease of reference only and shall not affect its interpretation.