TERMS & CONDITIONS AND END USER LICENCE AGREEMENT
NOTE: See health precautions and disclaimers at the bottom of this license. Do NOT listen to brainwave entrainment recordings (ie, binaural beats) if you suffer from epilepsy.
A The INTELLECTUAL PROPERTY RIGHTS in this SOFTWARE and its associated documentation are owned by Kaleidoscope Global. Please read through the terms and conditions of this AGREEMENT which will govern your use of the SOFTWARE. In purchasing the SOFTWARE you agree to accept the terms by using the SOFTWARE. If you do not accept the terms and conditions of this AGREEMENT then you should not attempt to load the SOFTWARE onto your COMPUTER. You should therefore abort this operation.
1.1 In this Agreement (including the Introduction above) the following words have the following meanings:
(a) “AGREEMENT” means this End User License Agreement
(b) “COMPUTER” means the LICENSEE’S hardware on which the SOFTWARE is loaded, if that hardware is a single Computer system, or shall mean the Computer system with which that hardware operates, if that hardware is a component of another Computer system.
(c) “CONFIDENTIAL INFORMATION” means any non-public information relating to the SOFTWARE PROVIDER including, without limitation, any details of the source code of the SOFTWARE, any commercial, financial or marketing information or any other information or material relating to the business of the SOFTWARE PROVIDER.
(d) “INTELLECTUAL PROPERTY RIGHTS” means any and all intellectual property rights of any nature including, without limitation, any and all copyright, patents, trademarks, design rights, semi conductor topography rights, database rights (in each case whether registered or unregistered) and applications for such rights anywhere in the world.
(e) “LICENSE FEE” means the fee payable by the LICENSEE to the SOFTWARE PROVIDER for the rights set out in this AGREEMENT.
(f) “LICENSEE” means the person, whether an individual, body corporate, unincorporated body or partnership or otherwise who has purchased or otherwise acquired the SOFTWARE.
(g) “SOFTWARE” means the computer software supplied with this AGREEMENT, including but not limited to (i) all of the contents of the files, disk(s), CD-ROM(s) or other media supplied with this AGREEMENT; (ii) digital images, stock photographs, clip art, sounds or other artistic works; (iii) fonts; (iv) audio recordings and (v) upgrades, modified versions, updates, additions, and copies of the SOFTWARE, if any, provided to the LICENSEE by the SOFTWARE PROVIDER.
(h) “SOFTWARE PROVIDER” means WCCL, an operating division of White Cliff Computing Ltd.
2 GRANT OF LICENSE
2.1 In consideration of the payment by the LICENSEE of the LICENSE FEE, the SOFTWARE PROVIDER hereby grants to the LICENSEE, subject to the terms and conditions of this AGREEMENT, a non-exclusive, non-transferable right to load and use ONE (1) copy of the SOFTWARE on a single COMPUTER which is under the LICENSEE’s control.
2.2 The LICENSEE is permitted under this AGREEMENT to transfer the SOFTWARE PRODUCT from one COMPUTER to another COMPUTER provided that the SOFTWARE is only loaded on one COMPUTER at any one time.
2.3 If the LICENSEE is a body corporate, partnership or unincorporated body, the SOFTWARE PROVIDER grants the LICENSEE the right to designate one individual within their organization to have the sole right to use the SOFTWARE PRODUCT in the manner provided above. Usage of additional copies, even if installed on the same COMPUTER, is prohibited unless an additional license of the SOFTWARE is purchased per copy installed.
2.4 Any rights not expressly granted in this AGREEMENT are hereby reserved.
3 TERM AND TERMINATION
3.1 This AGREEMENT shall continue in full force and effect unless and until terminated earlier in
accordance with its terms.
3.2 This AGREEMENT shall terminate automatically in the event that the LICENSEE breaches any of its terms. The AGREEMENT may also be terminated at any time by the LICENSEE destroying the SOFTWARE and its associated documentation together with all copies the LICENSEE may have made of it (whether permitted pursuant to this AGREEMENT or otherwise), in which event the LICENSEE accepts that there will be no refund of any LICENCE FEEs previously paid by the LICENSEE regardless of the period of time those fees so paid were intended to cover). In the event of termination, the LICENSEE will destroy all copies of the SOFTWARE and its associated documentation in the LICENSEE’s possession or under the LICENSEE’s control (including by erasing it from the hard drive of any COMPUTER upon which it has been installed).
3.3 The LICENSEE further agrees that the SOFTWARE PROVIDER has the right to use any and all means necessary to enforce its rights if the LICENSEE is in breach of this AGREEMENT, including but not limited to the right to repossess the SOFTWARE electronically by disabling it remotely over the Internet, and that termination will not entitle the LICENSEE to compensation for any losses or potential losses, howsoever caused, that may arise as a result of the termination of this AGREEMENT. Termination of this AGREEMENT for whatever reason shall not affect the continuing validity of any clause which is expressed to survive termination of this AGREEMENT.
3.4 If the SOFTWARE PROVIDER has notified the LICENSEE in advance that the provision to it of the
SOFTWARE is on a trial basis only, this LICENCE will terminate at the end of the trial period communicated by the SOFTWARE PROVIDER to the LICENSEE.
4 PRICE & PAYMENT
4.1 The LICENSEE will pay the LICENCE FEE in consideration of the supply of the SOFTWARE. Unless
otherwise stated on the SOFTWARE PROVIDER’s invoice, the LICENCE FEE is payable by the LICENSEE in pounds
sterling within 30 days of the date of invoice. The LICENCE FEE is exclusive of all VAT and applicable taxes and duties, which shall be payable by (or charged to) the LICENSEE. Failure by the LICENSEE to pay any amount when due shall constitute a breach of this AGREEMENT, entitling the SOFTWARE PROVIDER to (i) immediately terminate this AGREEMENT.
5 DISCLAIMER OF WARRANTY
5.1 The express terms of this AGREEMENT are in lieu of all warranties, conditions, undertakings, term and obligations implied by statute, common law, trade usage, course of dealing or otherwise, including but not limited to the implied warranties of merchantability and fitness for a particular purpose, all of which are hereby excluded to the fullest extent permitted by law.
5.2 The SOFTWARE PROVIDER does not warrant that the SOFTWARE will meet the LICENSEE’s requirements or that the operation of the SOFTWARE will be uninterrupted or error free or that defects or errors in the SOFTWARE will be corrected. The LICENSEE selects, loads and uses the SOFTWARE entirely at its own risk. The SOFTWARE PROVIDER shall not be liable if the SOFTWARE does not operate on the LICENSEE’s server or COMPUTER due to hardware or software incompatibilities, limitations or restrictions. This disclaimer of warranty constitutes an essential part of this AGREEMENT.
6 LIABILITY AND INDEMNITY
6.1 The SERVICE PROVIDER shall not be liable for any special, consequential, or indirect losses of any
kind including, without limitation, loss of profit, damage to reputation, damage to goodwill, corruption to, loss of or loss of availability of any data stored or processed by the SOFTWARE or for consequential loss arising from your use or inability to use the SOFTWARE or from errors or deficiencies in it whether caused by the negligence of the SOFTWARE PROVIDER or otherwise (even if the SOFTWARE PROVIDER has been advised of the possibility of such loss or damages). In respect of claims for which the liability of SOFTWARE PROVIDER is not excluded pursuant to this AGREEMENT, the SOFTWARE PROVIDER’s entire liability in contract, tort, negligence or otherwise under any provision of this AGREEMENT shall be limited to the amount of the LICENCE FEE actually paid by the LICENSEE at the date any such liability arises.
6.2 Nothing in this AGREEMENT shall operate to limit or exclude the liability of either party for death
or injury arising from its negligence, or for fraud.
6.3 The LICENSEE will indemnify the SOFTWARE PROVIDER and hold it harmless against all losses (except any future LICENCE FEEs that would have been payable by the LICENSEE but for termination of the AGREEMENT) sustained by the SOFTWARE PROVIDER as a result of any breach by the LICENSEE of the terms of
7 REFUND POLICY
7.1 If the SOFTWARE fails to operate or install on the LICENSEE’s COMPUTER due solely to an error or defect in the SOFTWARE, the SOFTWARE PROVIDER will exchange the SOFTWARE or refund the LICENCE FEE paid by the LICENSEE.
7.2 The SOFTWARE PROVIDER may, in its absolute discretion, provide a refund of the LICENCE FEE paid by the LICENSEE, if the LICENSEE is dissatisfied with the SOFTWARE, provided the LICENSEE returns or
alternatively destroys the SOFTWARE.
8.1 The SOFTWARE PROVIDER may provide the LICENSEE with upgrades for the SOFTWARE from time to time at its sole option, subject to receipt by the SERVICE PROVIDER of any applicable upgrade fees from the
LICENSEE. The LICENSEE hereby acknowledges and agrees that this AGREEMENT does not require the SOFTWARE PROVIDER to provide any upgrades whatsoever.
8.2 The LICENSEE may not continue to use the original SOFTWARE if the LICENSEE accepts and uses the upgraded SOFTWARE. The LICENSEE will destroy all copies of the original SOFTWARE immediately upon installation of any upgrade (including by erasing it from the hard drive of any COMPUTER upon which it has been installed).
8.3 The use and license of any upgraded SOFTWARE by the LICENSEE shall be subject at all times to the terms and conditions of this AGREEMENT unless the parties agree to any replacement terms and conditions prior to the purchase by the LICENSEE of any such upgrade.
8.4 If the SOFTWARE is licensed to the LICENSEE as an upgrade of a component of a package of software programs that the LICENSEE was granted a license for as a single product, the SOFTWARE may be used and transferred only as part of that single product package (and pursuant to the licence of that package) and may not be separated for use on more than one COMPUTER, web server, or web site.
9 DUAL-MEDIA SOFTWARE PRODUCT
9.1 The LICENSEE may receive the SOFTWARE PRODUCT in more than one medium. Nevertheless the LICENSEE only has the right to load and use one copy of the SOFTWARE on a single COMPUTER under the LICENSEE’s control, as set out in clause 1 above.
10 PRODUCT SUPPORT
10.1 The LICENSEE hereby acknowledges and agrees that this AGREEMENT does not require the SOFTWARE PROVIDER to provide any support whatsoever for the SOFTWARE. Without prejudice to anything else in this clause 10, however, the SOFTWARE PROVIDER may, in its sole discretion, provide such support for the SOFTWARE as it deems fit, provided such support is requested by the LICENSEE and subject to receipt from the LICENSEE of any applicable fees.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 All INTELLECTUAL PROPERTY RIGHTS in the SOFTWARE (and any accompanying documentation) belong to the SOFTWARE PROVIDER. Any use (which in this context includes, but is not limited to accessing, installing, downloading, copying or otherwise benefiting from the functionality of the SOFTWARE or using all or any part of the source code of the SOFTWARE to create derivative works) by the LICENSEE of the SOFTWARE which is not expressly granted to the LICENSEE in this AGREEMENT shall constitute a material breach of this AGREEMENT and an infringement of the SERVICE PROVIDER’s INTELLECTUAL PROPERTY RIGHTS in the SOFTWARE.
11.2 You shall not acquire ownership or co-ownership of the INTELLECTUAL PROPERTY RIGHTS in the
SOFTWARE which shall at all times remain vested in the SOFTWARE PROVIDER or its third party licensors (as appropriate).
11.3 The LICENSEE shall not use the SOFTWARE in any way so as to infringe the INTELLECTUAL PROPERTY RIGHTS of any third party.
11.4 All INTELLECTUAL PROPERTY RIGHTS in any customisation, translation, modification, or revision of the source code of the SOFTWARE by the LICENSEE in breach of this AGREEMENT are hereby assigned by the
LICENSEE to the SOFTWARE PROVIDER.
11.5 The parties acknowledge that certain third party products may be included within the SOFTWARE and that in respect of any such third party products the INTELLECTUAL PROPERTY RIGHTS shall be the property of and belong to the respective third parties concerned and neither of the parties to this AGREEMENT shall have any rights in respect thereof save as may be granted to them in accordance with the licences which they may have with such third party.
11.6 The LICENSEE shall not, without the express written consent of the SOFTWARE PROVIDER remove any of the copyright notices from the SOFTWARE (whether contained in the program code or within the HTML pages that the program may generate or otherwise).
11.7 Removal or alteration of said copyright notices by the LICENSEE in any way whatsoever (including, without limitation, so that they are no longer visible to the human eye in normal usage of the SOFTWARE) in breach of this clause shall constitute a material breach of this AGREEMENT.
11.8 The LICENSEE is prohibited from removing any trade mark from the SOFTWARE in any way whatsoever.
11.9 The provisions of this clause 11 shall survive termination (for whatever reason) of this AGREEMENT.
12.1 The LICENSEE will (i) maintain as confidential all CONFIDENTIAL INFORMATION that it may
acquire in any manner, and (ii) not directly or indirectly disclose to any person not a party to this AGREEMENT or publish any of the CONFIDENTIAL INFORMATION except with the prior written consent of the SOFTWARE PROVIDER or as required by law.
12.2 To secure the confidentiality of any CONFIDENTIAL INFORMATION, following receipt of any CONFIDENTIAL INFORMATION from the SOFTWARE PROVIDER, the LICENSEE shall apply security measures no less stringent than the measures which it would apply to protect its own like confidential information (but in any event no less than a reasonable degree of care) to prevent any unauthorised disclosure and use of the CONFIDENTIAL INFORMATION.
12.3 The LICENSEE shall notify the SOFTWARE PROVIDER immediately upon discovery of any unauthorized use or disclosure of CONFIDENTIAL INFORMATION or any other breach of this clause 12 by the LICENSEE or its employees, agents or consultants, and will cooperate with SOFTWARE PROVIDER in every reasonable way to help SOFTWARE PROVIDER regain possession of the CONFIDENTIAL INFORMATION and prevent its further unauthorized use or disclosure.
12.4 The provisions of this clause 12 shall survive termination (for whatever reason) of this AGREEMENT.
13 SOURCE CODE USAGE
13.1 Other than in circumstances expressly permitted by law, or where expressly permitted in writing by the SOFTWARE PROVIDER, the LICENSEE shall not attempt to discover, alter, modify or tamper with in any
way, decompile or reverse engineer the source code of the SOFTWARE. Any attempt to do so is strictly prohibited and will constitute a material breach of this
14 BACK-UP COPY
14.1 The LICENSEE may make one (1) copy of the SOFTWARE solely for backup/ archival purposes provided that (a) the original and each copy is kept under the LICENSEE’S control, (b) each such copy bears the
SOFTWARE PROVIDER’S copyright notice.
15 SEPARATION OF COMPONENTS
15.1 The SOFTWARE is licensed as a single product. Its component parts may not be separated for
use on more than one COMPUTER.
16 NO ASSIGNMENT
16.1 The LICENSEE may not assign, rent, lease or lend all or any part of the LICENSEE’s rights or
obligations under this AGREEMENT, and any attempt to do so will be void and a material breach of this AGREEMENT.
17.1 The LICENSEE hereby grants to the SOFTWARE PROVIDER the right to mention the LICENSEE’s name and/or web site as a customer site in its marketing materials, including but not limited to the SOFTWARE PROVIDER’s web sites, product brochures, or other media. Such usage may include listing the LICENSEE’s web site, linking to the LICENSEE’s website, and/or displaying the LICENSEE’s company logo as part of such listings or links. The LICENSEE may request in writing at any time that such use of the LICENSEE’s company name or web site may not be made, following which request the SOFTWARE PROVIDER will stop such use within a reasonable period of time.
18.1 This AGREEMENT shall be governed by and construed in accordance with US law.
19.1 No forbearance, delay, failure or indulgence by the SERVICE PROVIDER in enforcing any term of this Agreement shall prejudice or restrict any rights of the SERVICE PROVIDER nor shall any waiver of the SERVICE
PROVIDER’s rights operate as a waiver of any subsequent breach.
20 THIRD PARTIES
20.1 The LICENSEE and the SERVICE PROVIDER each confirm that it is their intent that this AGREEMENT is not intended to confer any rights upon any third party and that accordingly, the Contracts (Rights of Third Parties) Act 1999 shall not apply to this AGREEMENT.
21 ENTIRE AGREEMENT
21.1 This AGREEMENT and the documents referred to in it represent the entire understanding between the LICENSEE and the SERVICE PROVIDER relating to the LICENSEE’s use of the SOFTWARE and supersedes all
previous proposals, representations, understandings and prior agreements (whether oral or written) and other
21.2 The LICENSEE hereby warrants that it has not been induced to enter into this AGREEMENT by any prior representations whether oral or in writing except as expressly contained in this AGREEMENT. Nothing in this AGREEMENT shall operate to limit or exclude any liability for fraud.
22.1 In the event that any provision of this AGREEMENT is found by any court of competent jurisdiction to be invalid, void or illegal then this shall not affect the remaining terms and conditions of this AGREEMENT which shall remain in full force and effect.
HEALTH PRECAUTIONS & DISCLAIMERS:
1) None of our products are intended for use in the diagnosis, treatment or cure of any physical or mental condition or dysfunction.
2) Some products may contains flashing images. Do not load such products if you are susceptible to health problems due to flashing images. Seek medical advice if you are unsure.
3) Some products may induce a state of hypnosis. Do not load such products if you are susceptible to health
problems due to hypnosis. Seek medical advice if you are unsure.
3) You may wish to consult a physician before using brainwave entrainment products, such as binaural beat recordings. Do NOT use these products if you suffer from epilepsy. Do NOT use these products if you suffer from any serious mental disorder, if you are pregnant, if you wear a pacemaker, if you are prone to seizures, if you are photosensitive, or if you are under the influence of medication or drugs. We also recommend that users of brainwave entrainment products should be over 18 years of age. Do NOT use brainwave entrainment products when you need to stay awake. Seek medical advice if unsure of any of these warnings.