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License Terms
The provision of the Software to You by EarthSoft, and Your use of the Software is subject to the following terms and conditions and the installation and/or use of the Software by You is deemed to be acceptance by You of these terms and conditions. If You do not accept these terms and conditions, do not install or use the Software.
1. DEFINITIONS
The following terms, when used in this agreement shall have the meanings assigned to them in this clause.
"Agreement" means this license agreement.
"Commercial Purpose" means any purpose for which You or any other person receives payment or offers products or services for sale for monetary gain.
"License" means the license granted to you by EarthSoft.
"Parties" means You and EarthSoft.
"Party" means You or EarthSoft (as appropriate)
"Site" means a single physical location, the extent of which shall be that area of land owned by, rented by, or leased to You over which a person on foot can travel without entering into or travelling over land not owned by, rented by or leased to You.
"Software" means this computer program and all the associated files, documentation and other materials provided with it.
"Supplement" means the Single User License Supplement, the Single Computer License Supplement, the Site License Supplement or the Enterprise License Supplement as appropriate.
"Trial Period" means a period of 15 days (or such other period as EarthSoft may specify in its sole discretion from time to time) from the date you first install a Trial Version on a computer.
"Trial Version" means any copy of the Software for which you have not purchased a paid license.
"You" means the individual person or body corporate entering into this Agreement.
"Your" means of or belonging to You
2. GRANT OF LICENSE
2.1 Trial license
EarthSoft grants you a time limited, non-exclusive revocable license to install and use the Software on a single computer for the purposes of evaluation only for the duration of the Trial Period. You may not use any output produced by the Software for Commercial Purposes, or for posting on a website (even if such website is not used by You or any other person for Commercial Purposes)
Any such use is an infringement of EarthSoft`s copyright in the Software and a violation of these license terms and shall lead to the license being immediately revoked, without requiring EarthSoft to inform you of such termination.
2.2 Paid for license
Upon payment of the license fee for this software, EarthSoft grants You a perpetual, personal, fully paid up, non-exclusive, worldwide, irrevocable license to install and use the Software for personal or Commercial Purposes PROVIDED THAT AT ALL TIMES you comply with the terms of this License Agreement.
In addition :
Where you have purchased a single user license the terms of the Single User License Supplement shall also apply.
Where you have purchased a single computer license the terms of the Single Computer License Supplement shall also apply.
Where you have purchased a site license the terms of the Site License Supplement shall also apply.
Where you have purchased an enterprise license the terms of the Enterprise License Supplement shall also apply.
3. TERM AND TERMINATION
The term of this Agreement starts on the date of execution and continues indefinitely, unless :
1. You breach the terms of this Agreement, upon which event the Agreement will terminate immediately;
2. EarthSoftinforms You in writing that it is terminating this Agreement, due to a breach by You of its terms or conditions.
3. You voluntarily discontinue use of the Software, uninstall the Software and destroy all copies of the Software in your posession, including all backup copies;
4. The payment You made for the purchase of the license for the Software is reclaimed by you, is refunded either by EarthSoft or our payment collection agent(s), is subject to a payment card chargeback, or is subsequently found to be fraudulent; or
5. You do not purchase a paid license in which case this Agreement terminates upon the completion of the Trial Period.
4. CONSEQUENCES OF TERMINATION
Upon termination of this Agreement You MUST discontinue Your use of the Software, uninstall the Software and destroy all copies of the Software and any associated license files in Your posession, including all backup copies.
Where Your license to use the Software has terminated due to a breach of these terms by You, or due to your purchase price having been refunded (in whole or in part) we may require you to run certain program(s) or functions(s) of the Software to prove you have discontinued use of the Software. You agree to run these program(s) at our request and if required, provide the output to Us. No personal data will be collected or transmitted to us by these programs and/or functions.
5. RESERVATION OF RIGHTS AND OWNERSHIP
EarthSoft reserves all rights not explicitly granted to You by this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. EarthSoft owns the title, copyright and all other intellectual property rights in the Software.
The Software is licensed to You, not sold.
6. WHAT YOU MAY NOT DO
You may not :
o Provide the Software, in whole or in part to any other person, even if You do not charge for it, unless You are a software download service to which EarthSoft has submitted the Software for download, or EarthSoft has, in separate writing, granted You such rights.
o Modify the Software;
o Reverse engineer, decompile or disassemble the Software;
o Use the Software for any illegal or unlawful purpose;
o Incorporate the Software in any other product;
o Prepare derivatives, distillation(s) or other full or partial copies of the Software;
o Bypass or attempt to bypass the technoligical measures included in the Software to protect against unauthorised use or copying; or
o Transfer Your license to use the Software to a third party without the express written permission of EarthSoft.
7. DISCLAIMER
To the maximum extent permitted by applicable law, EarthSoft provides the Software AS IS , and hereby disclaims all other warranties and conditions, whether express, implied or statutory, including, but not limited to any implied warranties of merchantability or of fitness for a particular purpose with regard to the Software,
There is no warranty of condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement with regards to the Software.
There is no warranty that the Software is free from errors, bugs or other limitations.
EarthSoft are not liable for any damages sufferred by You as a result of using the Software.
In no event will EarthSoft be liable for any lost revenue, profit or data, or for direct, indirect, consequential, incidental or punitive damages, howsoever caused arising out of the use of or inability to use the Software, even if EarthSoft has been advised of the possibility of such damages.
8. INDEMNITY
You indemnify EarthSoft on a fair and reasonable basis against all claims, howsoever, wherever or whenever arising as a result of the supply of the Software to You by EarthSoft, or as a result of Your use of the Software.
9. EXCLUSION OFLIABILITY
To the maximum extent permissible under applicable law, EarthSoft shall not be liable for any loss or damage which you suffer through the installation or use of the Software.
10. LIMITATION OF LIABILITY
The total liability of EarthSoft for all claims howsoever, wherever or whenever arising under this Agreement shall be limited in the aggregate to the sum You paid for the license to use the Software
11. Third Party Rights
The Parties do not intend any provision to, nor shall any provision of this Agreement act so as to create any right exerciseable by a third party.
12. Safety Critical Systems
The Software has not been designed for and must not be used as part of, or incorporated into, any system, the correct operation of which is critical to the safety of any person or living organism.
13. PLACE OF EXECUTION
This Agreement shall be deemed to have been executed in England on the date upon which You first install the Software on a computer.
14. CHOICE OF LAW AND JURISDICTION
This Agreement is subject to the Laws of England and Wales, and the Parties submit to the exclusive jurisdiction of the English courts.
15. SEVERABILTY
Should any term (or terms) of this Agreement be deemed, by a court of competent jurisdiction, to be unenforceable, such term(s) shall be considered struck from this Agreement and all other terms shall remain in full force and effect.
16. Your Statutory Rights
Nothing in this Agreement limits, or is intended to limit your statutory rights.
Single User License Supplement
A single user license "Single User License" permits You to install and/or execute the Software on up to two (2) Computers at any given time for Your use only, PROVIDED THAT such Computers are owned by or leased to you, or are under your control at all times and that only one copy of the Software per Single User License is in use at any one time.You are required to purchase one (1) Single User License for each person who will use the Software.
Single User Licenses may be locked to the hardware profile of a particular Computer. The installation of the Software on other Computers being prevented through technological measures implemented through the licensing system. Where this is the case will provide an additional license file to you to allow you to install the Software on a second computer.
Where a Single User License is locked to the hardware profile of a particular Computer, we recognise that from time to time You may need to upgrade or replace your Computer and that this may require a new license file to be provided by Us. We will provide you with license files for such upgraded or replacement computer, but no more than three (3) such licenses per Single User License in any 180 day period. If you require more than 3 licences in any 180 day period, we may require you to certify in writing that you have not, and will not install the Software on more computers than you have Single User Licenses for.
Single Computer License Supplement
A single computer license "Single Computer License" permits You to install and/or execute the Software on a single Computer at any given time for use by any number of persons, but only one person at any one time. You need to purchase one (1) Single Computer License for each Computer on which you wish to install the Software.
Single Computer Licenses may be locked to the hardware profile of a particular Computer. The installation of the Software on other Computers being prevented through technological measures implemented through the licensing system.
Where a Single Computer License is locked to the hardware profile of a particular Computer, we recognise that from time to time You may need to upgrade or replace your Computer and that this may require a new license file to be provided by Us. We will provide you with license files for such upgraded or replacement Computer, but no more than three (3) licenses per Single Computer License in any 180 day period. If you require more than 3 licences in any 180 day period, we may require you to certify in writing that you have not, and will not install the Software on more Computers than you have Single Computer Licenses for.
Site License Supplement
A site license permits You to install and/or execute the Software on an unlimited number of computers physically and permanently located on the Site for which the Site License has been granted, and to permit the use of the Software on such Computers by You, your employees and subcontractors. You are also permitted to install the Software on laptop computers used by employees whose normal place of work is the Site. You are required to purchase one (1) Site License for each Site where you wish to install the Software.
You grant Us the right, upon reasonable written notice, to enter any of your premises (whether you have a Site License for such premises or not) for the purposes of auditing your compliance with the terms of this Agreement, and you shall make available such support as may reasonably be required to perform such audit; and make no charge to Us for providing access to your premises or for supporting our performance of such audit.
Enterprise License Supplement
An enterprise license "Enterprise License" permits You to install and/or execute the Software on an unlimited number of computers owned by or leased to You, or otherwise under Your permanent control, whether located at a single or multiple Sites, and to permit the use of the Software on such Computers by You, your employees and subcontractors.