Licence to use Ghost Pigeon Software
BACKGROUND
The Supplier is the entire legal and beneficial owner and licensor of the software and is willing to license the Customer to use this product.
By downloading in whatever manner the Software you accept the terms as set out below.
TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this licence.
Affiliate: includes each and any subsidiary or holding company of the Customer and each and any subsidiary of a holding company of the Customer.
Customer: shall mean you the purchaser of the software.
Date of Purchase: shall mean the date upon which the software is purchased and downloaded in whatever manner and to whatever device.
Price: the price payable by the Customer to the Supplier under clause 3.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Modification: any modification of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Software: shall mean the mobile phone software know as Ghost Pigeon.
Supplier: shall mean Sonaworks Limited incorporated and registered in England with company number 6709743 whose registered office is The Deep, Business Centre, Tower Street, Hull, HU1 4BG
Website: shall mean the Ghost Pigeon website or such other website as the Supplier may from time to time authorise.
1.2 Holding company shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.
1.3 Subsidiary shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.
1.4 The headings in this licence do not affect its interpretation. Save where the context otherwise requires, references to clauses are to clauses of this licence.
1.5 Unless the context otherwise requires:
(a) references to the Supplier and the Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted; and
(c) references to any gender include all genders.
1.6 In the case of conflict or ambiguity between this licence shall take precedence.
1.7 Words in the singular include the plural and in the plural include the singular.
2. LICENCE TO USE
2.1 In consideration of the price paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence commencing on, and including the date of purchase of this licence to use the Software.
2.2 In relation to scope of use:
(a) for the purposes of clause 2.1, use of the Software shall be restricted to the one single personal use of the Software on the customers own mobile telephone.
(b) the Customer shall not allow the use of the Software by, or for the benefit of, any person other than the Customer, nor may the customer distribute or sell the Software.
(c) the Customer may not use the Software other than as specified in clause 2.2(a) without the prior written consent of the Supplier and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(d) except as stated in clause 2, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part 2
2.3 In relation to assignment and sub-licensing:
(a) the Customer has no right to sell distribute sub-license or to assign the benefit or burden of this licence in whole or in part, without the prior written consent of the Supplier.
(b) the Supplier may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this licence and shall be under no obligation to give notice to the Customer of such sub-licence, assignment, charge or other transfer.
2. LICENCE TO USE
2.1 In consideration of the price paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence commencing on, and including the date of purchase of this licence to use the Software.
2.2 In relation to scope of use:
(a) for the purposes of clause 2.1, use of the Software shall be restricted to the one single personal use of the Software on the customers own mobile telephone.
(b) the Customer shall not allow the use of the Software by, or for the benefit of, any person other than the Customer, nor may the customer distribute or sell the Software.
(c) the Customer may not use the Software other than as specified in clause 2.2(a) without the prior written consent of the Supplier and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(d) except as stated in clause 2, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part 2
2.3 In relation to assignment and sub-licensing:
(a) the Customer has no right to sell distribute sub-license or to assign the benefit or burden of this licence in whole or in part, without the prior written consent of the Supplier.
(b) the Supplier may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this licence and shall be under no obligation to give notice to the Customer of such sub-licence, assignment, charge or other transfer.
3. PRICE
3.1 The Customer shall pay to the Supplier the sum as shown on the website. Payment shall be made by the customer at the time of downloading the software. The supplier may from time to time change the Price at its absolute discretion.
3.2 If the Customer fails to pay any amount payable by it under this agreement, the Supplier shall be entitled (but not obliged) to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 5% per annum above the base rate for the time being of HSBC. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4. MODIFICATIONS AND NEW VERSIONS
The Supplier shall be under no obligation to inform the Customer of any modifications or New Versions. Modifications New Versions and updates to the software (as and when made) shall be made available via the supplier’s website or mobile telephone download. The Customer may purchase such Modifications and New Versions on the terms on which they are generally made available to the Supplier's customers.
5. SUITABILITY AND COMPATIBILITY
The Supplier provides no warranties as to suitability and compatibility of the Software. The Supplier shall publish on the website details of suitable and compatible mobile telephone models. It is the Customers sole responsibility to ensure that the Software is suitable and compatible for use on the Customers mobile telephone, in the event the software is not suitable or compatible the Supplier may still charge the purchase price and shall be under no obligation to refund the purchase price.
6. SUPPLIER'S WARRANTIES AND LIMITS OF LIABILITY
6.1 The Supplier gives no warranties in respect of the use and operation of the Software.
6.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
6.3 The Customer accepts responsibility for the selection of the Software to achieve its intended results.
6.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
6.5 Except as expressly stated in clause
6.6
(a) the Supplier's liability, whether under this licence or any collateral contract, for loss of or damage to the Customer's tangible property caused by the negligence of the Supplier, its officers, employees, contractors or agents, shall not exceed the price paid for the software;
(b) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even though the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss of data;
provided that this clause 6.5(b) shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of clause 6.5(a) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 6.5(b);
(c) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the purchase price and
(d) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than pursuant to the express terms of this licence.
6.6 The exclusions in clause
6.5 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation; for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or for any other liability which may not be excluded by law.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Modification and New Version belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
8. TERMINATION
8.1 Termination by either party shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
8.2 On termination for any reason:
(a) all rights granted to the Customer under this licence shall cease;
(b) the Customer shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
9. FORCE MAJEURE
No party shall be liable to the other for any delay or non-performance of its obligations under this licence arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in clause 9 shall excuse the Customer from any payment obligations under this licence.
10. CONFIDENTIALITY AND PUBLICITY
10.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party.
10.2 The terms of this licence are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
10.3 The provisions of clause 10 shall remain in full force and effect notwithstanding termination of this licence for any reason.
11. WAIVER
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
12. SEVERABILITY
If any provision of this licence is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
13. THIRD PARTY RIGHTS
13.1 No term of this licence is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this licence. 6
14. ENTIRE AGREEMENT
This licence contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
15. GOVERNING LAW AND JURISDICTION
This licence agreement, its subject matter or its formation (including non- contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.