Quirkos Software Licence Agreement

QUIRKOS SOFTWARE LICENCE
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE DOWNLOADING OR USING ANY SOFTWARE FROM THIS WEBSITE:
This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Quirkos Limited, a company registered in Scotland with company number SC458174 and its registered office at 3 John's Place, Edinburgh, EH6 7EL (Licensor or we) for the Software (as defined below) together with online Documentation (as defined below).
We licence use of the Software and Documents to you on the basis of this Licence. We do not sell the Software or Documents to you. We remain the owners of the Software and Documents at all times.

BY DOWNLOADING OR USING OUR SERVICES YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES (IF APPLICABLE). IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE ORDERING PROCESS.

IMPORTANT NOTICE TO CONSUMERS:
AS A CONSUMER, YOU HAVE THE RIGHT TO WITHDRAW FROM YOUR TRANSACTION WITHOUT CHARGE AND WITHOUT ANY REASON BEFORE DOWNLOADING THE SOFTWARE. HOWEVER, YOU WILL LOSE THE RIGHT TO CANCEL THE TRANSACTION ONCE YOU DOWNLOAD OR LOGIN TO THE SOFTWARE OR SERVICE. THIS DOES NOT AFFECT YOUR CONSUMER RIGHTS FOR DEFECTIVE SOFTWARE.

You should print a copy of this Licence for future reference.
Agreed terms
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this Licence. Documentation: means the documentation provided on the Website in relation to the Software. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Licence Fee: means the licence fee payable by the Licensee to the Licensor calculated in accordance with the fees set out at the Website.
Software: means the Licensor’s software available to download or use through the Website.
Warranty Period: means the period of 90 days from the date of installation of the Software.
Website: means the Licensor’s website at www.quirkos.com.

2. Grant and scope of licence
2.1 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.
2.2 Where we offer a discounted Licence Fee, we reserve the right to verify that you are eligible for any discounted rate.
2.3 You may:
(a) download, install and use the Software for your personal purposes (if you are a consumer) or your internal business purposes (if you are a business) only:
(i) on one computer if the Licence is a single-user licence or the Software is for single use; or
(ii) if the Licence is a multi-user or network licence, by the number of concurrent users agreed between you and us;
(iii) if the Licence is a cloud subscription licence, that access is only granted to the registered user, and login details must not be shared or used by others;
(b) make one copy of the Software for back-up purposes only subject to compliance with the undertakings set out in condition 3.1;
(c) 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; and
(d) use any Documentation in support of the use permitted under condition 2.1 and make such copies of the Documentation as are reasonably necessary for its lawful use.

3. Licensee's undertakings
3.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) 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;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
(c) 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;
(d) 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:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(ii) is not unnecessarily disclosed or communicated without the Licensor's prior written consent to any third party; and
(iii) is not used to create any software application which is substantially similar to the Software;
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to include the copyright notice of the Licensor on all entire and partial copies you make of the Software on any medium;
(g) if applicable, 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;
(h) 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 (if applicable)from the Licensor;
(i) not to upload data to our servers or services that you do not have licence to use, or that is not compliant with local laws.

4. SUPPORT
4.1 The Licensor's technical support staff will endeavour to answer by telephone or e-mail any queries which you, as the original registered purchaser, may have regarding the use or application of the Software during the Warranty Period. For telephone support please call +44 (0)131 555 3736 between the hours of 9am and 5pm GMT/BST, Monday to Friday, excluding UK national holidays. E-mail support is available at support@quirkos.com .
4.2 Any additional support or training out with that offered to the Licensee at clause 4.1 above is set out at the Website at the costs stated.

5. Intellectual property rights
5.1 You acknowledge that all Intellectual Property Rights in the Software and the Documentation anywhere in the world belong to the Licensor or are validly licensed 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.
5.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
5.3 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.

6. Warranty
6.1 The Licensor warrants that:
(a) For the Warranty Period the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the device and with the operating system for which it was designed), and that the Documentation correctly describes the operation of the Software in all material respects;
(b) it has tested the Software for viruses using commercially available virus-checking software, consistent with current industry practice.
6.2 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.
6.3 You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of minor errors, or temporary unavailability of the service shall not constitute a breach of this Licence.
6.4 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.
6.5 If you are a consumer, this warranty is in addition to your legal rights in relation to Software that is not faulty or not as described.

6.6 We provide all users with a free trial period of 14 days. We recommend that users use this period to assess the suitability of the software for their specific purpose and computer system. Subscribers will be informed by email before renewal or taking of any payment for additional periods. It is the users responsibility to ensure they are able to receive and act upon these notices, whitelisting our communications if necessary. Any request for refunds made after this payments have been taken will be at our discretion, and usually only for exceptional circumstances. 7. Licensor's liability if you are a business user
7.1 If you are a business customer, we only supply the Software and Documents for internal use by your business, and you agree not to use the Software or Documents for any re-sale purposes.
7.2 This clause 7 sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:
(a) any breach of this Licence however arising
(b) any use made of the Software or the Documentation by you, or of any product or service incorporating any of the Software or the Documentation; and
(c) any representation, statement or delictual act or omission (including negligence) arising under or in connection with this Licence.
7.3 We shall not under any circumstances whatever be liable to you, whether in contract, negligence, breach of statutory duty, or otherwise, arising under or in connection with the Licence for:
(a) loss of profits, sales, business, or revenue;
(b) business interruption;
(c) loss of anticipated savings;
(d) loss or corruption of data or information;
(e) loss of business opportunity, goodwill or reputation; or
(f) any indirect or consequential loss or damage.
7.4 Other than the losses set out in clause 7.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, negligence or otherwise, shall in all circumstances be limited to a sum equal to 100% of the Licence Fee. This maximum cap does not apply to clause 7.5.
7.5 Nothing in this Licence shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) breach of section 2 of the Consumer Protection Act 1987; or
(e) the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.

8. Limitation of liability if you are a consumer user
8.1 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 Documents meet your requirements.
8.2 If you are a consumer, we only supply the Software and Documents for domestic and private use. You agree not to use the Software and Documents for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
8.3 We are only responsible for loss or damage you suffer that is a foreseeable result of our breach of this Licence or our negligence up to the amount specified in clause 8.4, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we granted you the Licence.
8.4 Our maximum aggregate liability under or in connection with this Licence whether in contract, negligence or otherwise, shall in all circumstances be limited to a sum equal to 100% of the Licence Fee. This does not apply to the types of loss set out in condition 8.5.
8.5 Nothing in this Licence shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; or
any other liability that cannot be excluded or limited by law.

9. Termination
9.1 The Licensor may terminate this Licence immediately by written notice to you if:
(a) 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
(b) a petition for a bankruptcy order to be made against you has been presented to the court; or
(c) 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.
9.2 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must cease all activities authorised by this Licence;
(c) you must immediately pay to the Licensor any sums due to the Licensor under this Licence; and
(d) 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.

10. Transfer of rights and obligations
10.1 This Licence is binding on you and us, and on our respective successors and assigns.
10.2 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.
10.3 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.

11. Notices
All notices given by you to us must be given to us at info@quirkos.com. We may give notice to you at either the e-mail or postal address you provided to us 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 e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

12. General terms
12.1 Neither party shall be in breach of this Licence nor liable for delay in performing, or failure to perform, any of its obligations under this Licence if such delay or failure results from events, circumstances or causes beyond its reasonable control.
12.2 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.
12.3 A waiver of any right or remedy under this Licence or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.4 This Licence constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the licensing of the Software and Documentation.
12.5 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13. Law and jurisdiction
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law and submitted to the non-exclusive jurisdiction of the Scottish courts.