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INRstar Licence Agreement
PROGRAM
LICENCE AGREEMENT
PLEASE READ
CAREFULLY THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT BELOW. IN THE EVENT
YOU DO NOT AGREE WITH ANY TERM OR CONDITIONS RETURN THIS PACKAGE TO SULLIVAN
CUFF SOFTWARE LIMITED.
THIS AGREEMENT is made
between you the User and Sullivan Cuff Software Limited (a company registered in
England with registered number 3473597) (“the Company”) of 1 Lender Lane,
MuIlion, Helston, Cornwall, United Kingdom TR12 7HS for licensing by the Company
to the User of the INRstar software product which may include associated media,
printed materials and online or electronic documentation (“the software”) on the
date you accept the terms of this Licence Agreement having read its terms and
having confirmed your agreement to them by clicking the “I agree” button
during the installation process.
By installing, copying,
downloading, accessing or otherwise using the software on your machine you agree
to be bound by the terms of this Agreement, to pay the full purchase price or
the rental fee for the software which is renewable annually. If you do not agree
to the terms of this Agreement, promptly return the software and the
accompanying items to the Company.
The Company grants you a
non-exclusive licence to use one copy of the software on all of the computers at
a single site. You may be provided with the software for a trial period after which you must register your agreement to the terms
of this Agreement by paying the full purchase price or the annual rental fee
payable notified to you separately in respect of the trial period and the
remainder of the first year. The software is “in use” on a computer as
provided in clause 7 below and when it is loaded into the temporary memory (i.e.
RAM) or installed into permanent memory (e.g. hard disk, CD-ROM or other storage
device) of that computer.
The software is subject
to English copyright law protection and owned by the Company and is protected by
International Copyright Law. You must therefore treat the software as any other
copyright material (e.g. a book). In addition to installing the software on one
computer you may only make a copy of the software for archival and back up
purposes, and any copy must contain copyright notices in the same form as the
original.
YOU MAY NOT USE, COPY, MODIFY,
DISASSEMBLE, DECOMPILE, REVERSE ENGINEER OR TRANSFER THE PROGRAMS OR ANY COPY,
MODIFICATION, OR MERGED PORTION IN WHOLE OR PART, EXCEPT AS EXPRESSLY PROVIDED
FOR IN THIS AGREEMENT.
COPYRIGHT
All intellectual property rights in the software and User
documentation are owned by the Company or its suppliers and are protected by
English copyright laws, other applicable intellectual property laws and
international treaty provisions. The Company and its suppliers retain all rights
not expressly granted.
TERM
The licence is effective unless rejected or until
terminated. You may reject or terminate it at any time by destroying the
software together with all copies, modifications and merged portions in any
form. It will also terminate upon conditions set forth elsewhere in this
Agreement or if you fail to comply with any term or condition of this Agreement.
You agree upon such termination to destroy the software together with all
copies, modifications and merged portions in any form. On non-payment of the
rental fee when due or failure to register, this licence will automatically
terminate and the software will become unusable.
LIMITED
WARRANTY AND REMEDIES
The Company warrants that
the software will perform substantially according to the manual for 60 days from
the date of this Agreement. This warranty is limited to the original purchaser
and is not transferable.
THIS SOFTWARE IS INTENDED FOR GUIDANCE OF QUALIFIED MEDICAL PRACTITIONERS
ONLY. THE WARFARIN DOSES AND TEST REVIEW PERIODS SUGGESTED BY THIS SOFTWARE ARE
FOR THE GUIDANCE OF A REGISTERED MEDICAL PRACTITIONER AS AN AID TO THE
PRESCRIPTION OF WARFARIN. IT IS AT ALL TIMES THE RESPONSIBILITY OF THE
PRESCRIBING MEDICAL PRACTITIONER WHO ALONE HAS KNOWLEDGE OF THE CONDITION OF THE
PATIENT TO CONFIRM THAT THE DOSES AND REVIEW PERIODS ARE APPROPRIATE.
The software can only be used if the full
purchase price or the annual rental fee payable to the Company in advance at the
commencement of such term following an initial trial period of a maximum of
three calendar months is paid when due and on the clear understanding that:
1.
Except for the express warranty stated above the Company
gives no warranties, (express or implied), including (but not limited to) any
implied warranties whether relating to merchantability or fitness for a
particular purpose or otherwise with respect to the software. All such
warranties are hereby excluded to the fullest extent permitted by English law.
The Company and its suppliers do not warrant
that the functions contained in the programs will meet your requirements or that
the operation of the programs will be uninterrupted or error-free.
You assume responsibility for the selection of the program and hardware to
achieve your intended results: and for the installation, use and results
obtained from the programs.
YOUR SOLE REMEDIES AND THE ENTIRE
LIABILITY OF THE COMPANY OR ITS SUPPLIERS ARE SET FORTH ABOVE. IN NO EVENT WILL
THE COMPANY OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY
DAMAGES INCLUDING ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST
PROFITS, LOST SAVINGS OR OTHER DAMAGES ARISING OUT OF USE OF OR INABILITY TO USE
SUCH PROGRAMS .
2.
The Company reserves the right in its sole discretion to
amend the rental fee on giving one months’ prior written notice to the User.
3. In no event shall
the Company or its employees be liable for any damages whatsoever, even if the
Company has been advised of the possibility of such damages in any particular
case. The Company’s entire liability under any provisions of this Agreement
shall be limited as provided in this Agreement.
4. The Company’s exclusive
warranty and the remedy provided for breach thereof shall not apply to damage or
deficiencies resulting from accident, alteration, and modification, foreign
attachments, misuse, tampering, negligence, improper maintenance or abuse.
5. Upgrades and
maintenance releases are issued free to the registered User (Person or
organization who have purchased or rented the software and continues to pay the
annual support fee/rental payment). The User shall install these releases on all
computers that use the software within 10 working days of receiving them.
6. This Agreement
supersedes all prior agreements and understandings between the parties, whether
written or oral, related to the subject matter and is intended by the parties as
the complete and exclusive statement of the terms of their Agreement. No
modification, addition to, or waiver of any of the terms hereof shall be
effective unless in writing and signed by an authorised officer of the Company.
7.(a)
For the purposes of this
Agreement the term “use” is defined as the copying or transmission of the
software or (where in machine readable form) including the manual into a
computer for the processing of the instructions contained in the software.
(b)
For
the purposes of this Agreement the term “the software” means the software
programs in object code form including any new release of the same made or
issued by the Company.
8.
Property and confidentiality in the Software
8.1 The software
contains confidential information of the Company and all copyright trademarks
and other intellectual property rights in the software are the exclusive
property of the Company.
8.2 The User shall not:
8.2.1 save as provided in
clause 9 below make back-up copies of the software;
8.2.2 save solely for the
purposes expressly permitted by and in accordance with s. 296A(1) Contracts,
Designs and Patents Act 1988 (as amended) (“CDPA”) or s. 50B(2) CDPA copy adapt
or reverse compile the whole or any part of the software;
8.2.3 assign transfer
sell lease rent charge or otherwise deal in or encumber the software to a third
party or use the software on behalf of any third party or make available the
same to any third party save where such third party has agreed in advance with
the Company a Programme Licence Agreement in broadly similar terms to this
Agreement; or
8.2.4 remove or alter any
copyright or other proprietary notice on any of the software.
8.3 The User shall:
8.3.1 keep confidential
the software and limit access to the same to those of its employees agents and
subcontractors who either have a need to know or who are engaged in the Use of
the Licensed Programs (including where appropriate the Programme Documentation);
8.3.2 reproduce on any copy
(whether in machine readable or human readable form) of the software the
Company’s copyright and trade mark notices;
8.3.3 notify the Company
immediately if the User becomes aware of any unauthorised use of the whole or
any part of the software by any third party; and without prejudice to the
foregoing take all such other steps as shall from time to time be necessary to
protect the confidential information and intellectual property rights of the
Company in the Software.
8.4 The User shall inform
all relevant employees agents and sub-contractors that the software constitute
confidential information of the Company and that all intellectual property
rights therein are the property of the Company and the User shall take all such
steps as shall be necessary to ensure compliance by its employees agents and
sub-contractors with the provisions of this clause 8.
9. Copying of the
Software
The User shall be entitled to make one back-up copy of each
installation of the software. Any such copy shall in all respects be subject to
the terms and conditions of this agreement and shall be deemed to form part of
the software.
10. Limitation of
liability
10.1
The following provisions set out
the Company’s entire liability (including any liability for the acts and
omissions of its employees
agents and sub-contractors) to the
User in respect of:
10.1.1
any breach of its
contractual obligations arising under this agreement; and
10.1.2
any representation statement
or tortious act or omission including negligence arising under or in connection
with this agreement
AND THE USER’S ATTENTION IS IN
PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 10.
10.2
Any act or omission on the
part of the Company or its employees agents or sub-contractors falling within
clause 10.1 above shall for the purposes of this clause 10 be known as an ‘Event
of Default’.
10.3
The
Company’s liability to the User for death or injury resulting from its own or
that of its employees’ agents’ or subcontractors’ negligence shall not be
limited.
10.4
Subject
to the limits set out in clause 10.5.1 below the Company shall accept liability
to the User in respect of damage to the tangible property of the User resulting
from the negligence of the Company or its employees agents or sub-contractors.
10.5
Subject to the provisions of clause
10.3 above the Company’s entire liability in respect of any Event of Default
shall be limited to damages of an amount equal to:
10.5.1
£50.00
in the case of an Event of Default falling within clause 10.4 above; and
10.5.2
in the case of any other Event of
Default the aggregate of the Licence Fee paid in the immediately preceding
period of 12 months.
10.6
Subject
to clause 10.3 above the Company shall not be liable to the User in respect of
any Event of Default for loss of profits goodwill or any type of special
indirect or consequential loss (including loss or damage suffered by the User as
a result of an action brought by a third parry) even if such loss was reasonably
foreseeable or the Company had been advised of the possibility of the User
incurring the same.
10.7
If a number of Events of Default
give rise substantially to the same loss then they shall be regarded as giving
rise to only one claim under this agreement.
10.8
Nothing
in this clause shall confer any right or remedy upon the User to which it would
not otherwise be legally entitled.
10.9 Any replacement software
will be warranted by the Company subject to the terms of this Agreement for the
remainder of the original warranty period.
11
Risk
in the software
Risk in the Software will pass to the User on
delivery. If subsequently the software is (in whole or in part) destroyed
damaged or lost the Company will upon request replace the same subject to the
User paying its then prevailing charges.
12 Confidentiality
12.1 Each of the parties
hereto undertakes to the other to keep confidential all information (written or
oral) concerning the business and affairs of the other that it shall have
obtained or received as a result of the discussions leading up to or the
entering into of this Agreement save that which is:
12.1.1 Trivial or obvious;
12.1.2 Already in its possession
other than as a result of a breach of this clause; or
12.1.3 In the public domain other
than as a result of a breach of this clause.
12.2 Each of the parties
undertakes to the other to take all such steps as shall from time to time be
necessary to ensure compliance with the provisions of clause 12.1 above by its
employee’s, agents and sub-contractors.
13. Duration of
agreement
This agreement shall continue until terminated in
accordance with the provisions of clause 14 below.
14. Termination
14.1 This agreement may be
terminated:
14.1.1 by expiry of the twelve
months term and the User’s failure to renew the rental by payment when due of
the annual rental fee;
14.1.2 by the User upon giving
not less than 30 days notice to the Company;
14.1.3 forthwith by the
Company if the User fails to pay any sum due hereunder within 30 days of the due
date therefor;
14.1.4 forthwith by either
party if the other commits any material breach of any term of this agreement
(other than one falling within 14.1.2 above) and which (in the case of a breach
capable of being remedied) shall not have been remedied within 30 days of a
written request to remedy the same;
14.1.5 forthwith by either
party if the other shall convene a meeting of its creditors or if a proposal
shall be made for a voluntary arrangement within Part I of the Insolvency Act
1986 or a proposal for any other composition scheme or arrangement with (or
assignment for the benefit of) its creditors or if the other shall be unable to
pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if
a trustee receiver administrative receiver or similar officer is appointed in
respect of all or any part of the business or assets of the other or if a
petition is presented or a meeting is convened for the purpose of considering a
resolution or other steps are taken for the winding up of the other or for the
making of an administration order (otherwise than for the purpose of an
amalgamation or reconstruction).
14.2 Any termination of
this agreement pursuant to this clause shall be without prejudice to any other
rights or remedies a party may be entitled to hereunder or at law and shall not
affect any accrued rights or liabilities of either party nor the coming into or
continuance in force of any provision hereof which is expressly or by
implication intended to come into or continue in force on or after such
termination
14.3 The User accepts
that the software was not designed and produced to its individual requirement
and that the User was responsible for their selection.
15. Successors
This Agreement shall be
binding upon and enure for the benefit of the successors in title of the parties
hereto.
16. Assignment and sub-licensing
The User shall not be entitled to assign, or
otherwise transfer 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
written consent of the Company.
17. VAT
Save in so far as otherwise expressly provided all
amounts payable by virtue of this Agreement are expressed exclusive of value
added tax and any value added tax arising in respect of any supply made
hereunder shall on the issue of a valid tax invoice in respect of the said be
paid to the party making such supply by the party to whom it is made in addition
to any other consideration payable therefor.
18. Headings
Headings to clauses in this Agreement are for the purpose of information and
identification only and shall not be construed as forming part of this
Agreement.
19. Law
This Agreement shall not be governed by the United Nations Convention on
Contracts for the International Sale of Goods (1980) but shall be governed by and construed in accordance with English law
and the parties hereto agree to submit to the exclusive jurisdiction of the
English courts.
YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE
BOUND BY ITS TERMS AND CONDITIONS: YOU FURTHER AGREE IT IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR
PRIOR AGREEMENT, ORAL OR WRITTEN AND ANY OTHER COMMUNICATIONS BETWEEN US
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
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