Toumaz require customers requesting access to this extranet to sign a mutual non disclosure agreement. This is in addition to the software license agreement below. If your company hasn’t set up an NDA with Toumaz already, the Toumaz mutual NDA will be emailed to you as part of the registration process.
Toumaz Software LicenCe Agreement
IMPORTANT-READ CAREFULLY BEFORE USING THE PRODUCT:
Please read the terms of the Licence Agreement below carefully. The Licence Agreement constitutes a legal agreement between you and Toumaz UK Limited (“Toumaz”) and governs your use of software (the “Software”) and associated documentation downloaded by you from the Toumaz extranet (the “Documentation”).
The Software and Documentation shall be referred to below as the “Licensed Property”. The diskette, CD-ROM or other media on which you obtain a copy of the Licensed Property shall be referred to as the “Media”.
If you choose not to accept the terms of this Licence Agreement you are not permitted to install, run, copy, save, store, modify or in any way use the Licensed Property on any device, computer or media and you must delete all copies you made or obtained of the Licensed Property and return the Media to Toumaz.
1. ACCEPTANCE OR REJECTION
By clicking on the “I accept” button and then reconfirming this choice if prompted, you will indicate acceptance of this Licence Agreement. This will include acceptance of the Limited Warranty and Limitation and Exclusion of Liability at clauses 8, 9 and 10.
Once you have read through this Licence Agreement carefully, if you do not accept its terms in full without any reservation you should click on the “I reject” button. You must then delete all of the Licensed Property from your computer, device or other media and promptly (and in any event within 14 days of receipt) return to Toumaz the Media and any other items or materials or documentation which form part of or is associated with the Licensed Property.
By downloading, installing, running, copying, saving, storing, modifying or using the Licensed Property (even if you do so after indicating you rejection of the Licence Agreement by clicking the “I reject” button) you will be deemed to have accepted the terms of this Licence Agreement which will become legally binding on you.
If you purchased the Media containing the Licensed Property for your own account and wish to purchase the licence granted under this Agreement (the “Licence”) for your own benefit, your acceptance of this Licence Agreement will be deemed to be given personally and this Licence Agreement will be an agreement between Toumaz and you personally. If the Media containing the Licensed Property was acquired by or for any other person (a “Principal”) or if you wish to purchase the Licence on behalf of such Principal (whether as an employee, independent contractor, director, agent or representative of such Principal) the Licence granted under this Licence Agreement will be deemed to be granted to that Principal (and not to you personally) and both you and the Principal agree to be bound by the terms of this Agreement.
Unless you seek to acquire the Licence for your own personal benefit, you hereby warrant and represent that you are duly authorised by the Principal to accept the terms of this Licence Agreement on its behalf and that the Principal will be legally bound by the terms hereof upon you acceptance. If you are not duly authorised by the Principal to accept the terms hereof, the Principal will not be licensed to use the Software.
In this Agreement, references to “you” shall be construed to refer to you personally or (as the case may be) to you and/or the Principal on whose behalf you accept this Licence Agreement.
The entirety of this document together with any related notices, warnings and disclaimers made by Toumaz and printed on the packaging of the Media or displayed on the screens will be part of the Licence Agreement upon its acceptance by you.
2. INTERPRETATION
2.1 In this Agreement:
- a "person" includes a reference to any individual, firm, company, corporation or other body corporate, government, state or agency of a state or any joint venture, association or partnership, works council or employee representative body (whether or not having separate legal personality);
- a "person" includes a reference to that person's legal personal representatives, successors and permitted assigns;
- a "Party" is a party to this Agreement (including where relevant both you and a relevant Principal) and includes a reference to that Party's successors and permitted assigns;
- a clause or paragraph, unless the context otherwise requires, is a reference to a clause or paragraph in this Licence Agreement;
- any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term and to any English statute shall be construed so as to include equivalent or analogous laws of any other jurisdiction;
- the rule known as the ejusdem generis rule shall not apply and accordingly general words introduced by the word "other" or the words "including" or "includes" shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
- general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words; and
- the headings are for convenience only and do not affect its interpretation.
2.2 Where a Party is restricted from doing any act under this Agreement it shall not do such act directly or indirectly or through others acting on its behalf or for its benefit and shall ensure that its subsidiaries, parent companies or any subsidiaries of its parent companies, its subcontractors, suppliers, sub-licensees, distributors, agents and representatives shall not do anything which, if done by that Party, would constitute a breach of this Agreement.
3. TITLE
By this Licence Agreement you acquire a limited user licence in respect of the Licensed Property (subject to the terms of this Agreement) and no other rights, title or interest in, to or under the Licensed Property. All of the intellectual property rights, including copyright, database rights, patents or trade marks relating to or which subsist in the Licensed Property or in any of its content (“IPRs”) (except insofar as such IPRs are the property of third parties) are and shall remain the sole property of Toumaz. Except as expressly provided in clause 4, nothing herein confers or shall confer upon you any right, title or interest in such IPRs either during the term of this Licence Agreement or at any time thereafter.
4. GRANT OF LICENSE.
4.1 Toumaz hereby grants to you a limited, fully paid-up, royalty-free, non-exclusive worldwide licence to install, run, store and use the Software on any computer system or personal digital assistant owned or leased by you and to make one copy of the Software for back-up, archival or other security purposes.
4.2 Toumaz hereby grants to you a limited, fully paid-up, royalty-free, non-exclusive worldwide licence (except as provided in clause 11.2 to this Agreement) to incorporate the Licensed Property and any elements of the Software, or computer code that you write which derives from or based on any Software provided to you in source code, or created using any Software tools included in the Licensed Property (“Modified Code”) into your own computer system and to distribute, sell, export and license the use of your computer system, incorporating such Software or Modified Code, on computers or personal digital assistant, for use with devices incorporating the TZ1030 or TZ1031 or TZ1053 or later versions of the TELRAN system on chip, provided that the Software or Modified Code are made available, distributed, sold, or licensed solely in executable form and that any Modified Code includes the acknowledgment referred to in clause 4.5 below.
4.3 The Licensed Property includes (among other things): (i) example source code for demonstration and further development by you or your permitted sub-licensees (ii) application protocol interfaces (API) computer files that provide a library of functions in executable form and (iii) executable code.
4.4 In relation to computer files provided to you in source code, the licences granted to you under clauses 4.1 and 4.2 include the right to modify, develop and adapt the code for the purpose of developing tailored applications for use with devices incorporating a TELRAN system on chip, provided that the modified or adapted code includes the acknowledgement referred to in clause 4.5.
4.5 You shall ensure that an acknowledgment is clearly displayed during the install process of any Modified Code you create which is sold, distributed, communicated or made available to the public, to customers, subcontractors, licensees or other third parties, stating that the code is derived from or incorporates elements of software from Toumaz UK Limited and specifying which version of the software was included in (or was used in creating) the Modified Code. You shall also ensure that such acknowledgment is clearly displayed in all user manuals, instructions, ‘help’ applications and similar materials provided to customers and other users with (or in relation to) the Modified Code, whether provided in hard copy or electronically.
4.6 In relation to the API and other computer files provided to you in executable library code form, the licenses granted to you under clauses 4.1 and 4.2 include the right to install, run, store and use the code on your computer or PDA in connection with devices incorporating a TELRAN system on chip. The Licence does not permit you and you shall not reverse engineer, decompile, disassemble, modify or create derivative works based on the API library code nor reproduce, modify or adapt a decompiled version of the API library code files (except as permitted under clause 4.9).
4.7 You are permitted to sub-license end-users of your computer system the right to install, run, store and use the Software and such other software referred to in clause 4.2 as part of your computer system, in each case only in executable form and only in connection with devices incorporating a TELRAN system on chip. Except as aforesaid, the Licence is non-transferable and non-sub-licensable.
4.8 You may provide copies of the Licensed Property to your subcontractors, contract manufacturers, distributors, resellers provided that you and the recipient of such copy (except in the case of end-users) notify Toumaz and that the recipient accepts the terms of this Licence Agreement and notifies its acceptance to Toumaz. You may not provide copies of any Licensed Property to any person other than as provided under clauses 4.2 and 4.6.
4.9 Nothing in this Agreement shall restrict you from doing such acts as are permitted under sections 50A, 50B, 50BA and 296A of the Copyright, Designs and Patents Act 1988 or under any mandatory statutory provisions amending or substituting those provisions which are applicable in the United Kingdom including under European Union legislation.
5. RESTRICTIONS AND EXPORT
5.1 You may not use the Licensed Property to perform any unauthorised or unlawful reproduction, dissemination or communication of material (such as transfer of files in violation of a copyright) or for any illegal purpose. You will comply with all applicable laws, rules and regulations governing the export of goods and information, including those laws in the country in which the Licensed Property was purchased. In particular, you will not export or re-export, directly or indirectly, separately or as part of a system the Licensed Property to any country for which an export license or other approval is required, without first obtaining the same.
5.2 You may not rent, sublicense, sell, assign, pledge, transfer or otherwise dispose of the Licensed Property, on a temporary or permanent basis, without the prior written consent of Toumaz or as expressly permitted in this Agreement.
5.3 You shall maintain the source code versions of the Licensed Property, or any derivatives thereof, under password control protection and shall protect the Documentation secure and shall not disclose such source code versions of the Licensed Property, or any derivative thereof or the Documentation to any person other than your employees or sub-contractors whose roles require such access. You shall not use or license the use of the Software (except software provided under a public licence), or any derivatives thereof, with a processing device other than a TELRAN system on chip, and you agree that any such unauthorised use of the Licensed Property, or any derivatives thereof, is a material breach of this Agreement.
5.4 Except as expressly permitted under this Licence Agreement, you may not use, copy, modify, publish, disclose, display, provide, transfer or make available to any person the Licensed Property or any copy thereof or any derivative work, in whole or in part. If you transfer possession of any copy of the Licensed Property or any derivative work to another person (except as expressly permitted under this Agreement), the Licence shall immediately terminate.
5.5 You may not vary, delete, alter or obscure any proprietary notices displayed on the Licensed Material (including notices displayed as part of the Software).
5.6 Except as expressly permitted under this Licence Agreement, you may not sublicense, transfer, or assign the Licensed Property, or any derivatives thereof, or your rights under this Agreement to any third party.
6. SUPPORT SERVICES AND UPDATES
6.1 Toumaz shall provide you with support services consisting of advice provided by email or (where necessary) by telephone relating to the use of the Licensed Property (“Support Services”) for a period of 90 days from the date of your acceptance of this Licence Agreement. Your use of the Support Services shall be subject to the terms and policies of Toumaz which may be published and amended from time to time online or through documentation, and/or other materials provided by the Toumaz. Toumaz shall be entitled to use for its business purposes, including for product support and development, and to disclose or communicate to others, any technical information relating to the use of the Licensed Property that you may provide to Toumaz in using the Support Services. Toumaz will not utilise such technical information in a form that personally identifies you.
6.2 Toumaz may, from time to time, at its sole discretion, offer licensed users of the Licensed Property updates to the Licensed Products including fixes, improvements or enhancements (together “Updates”). If you accept or acquire any Update, such Update shall be deemed to be Licensed Property for the purpose of this Agreement and its use shall be subject to the terms of this Agreement (subject to such specific terms and conditions agreed between you and Toumaz in relation to the Update).
7. TERMINATION
The Licence Agreement shall remain effective until terminated. You may terminate it at any time by destroying the Media and together with all copies in your possession or control of the Licensed Property in any form. Without prejudice to any other rights, Toumaz may terminate this Licence Agreement if you fail to comply with its terms. In the event of any termination of this Licence Agreement (howsoever arising), you agree to promptly destroy the Media together with all copies of in your possession or control of Licensed Property in any form or return the same to Toumaz. Reasonable costs of postage and packing will be refunded.
8. LIMITED WARRANTY
Subject to the limitations and exclusions of liability below, Toumaz warrants that any Media on which the Licensed Property is supplied shall be free from material defects under normal conditions and use for a period of 60 days (“Warranty Period”) from the date of delivery to you. Toumaz shall not be liable under the above warranty for any material defects which result from any modification, variation or addition not performed by Toumaz or caused by any abuse, corruption or incorrect use or storage of the Media, including use of the Licensed Property with incompatible equipment or other software.
9. DISCLAIMERS OF WARRANTIES AND REPRESENTATIONS
9.1 The foregoing is made in lieu of any other warranties, representations or guarantees of any kind, either express or implied, including, without limitation, any implied warranties of quality, merchantability, fitness for a particular purpose, ability to achieve a particular result or non-infringement of third party intellectual property rights. You assume the entire risk as to the quality and performance of the Licensed Property. Toumaz does not warrant that the Licensed Property will meet your requirements or that its operation will be uninterrupted or error free.
9.2 Toumaz does not hold any regulatory approval and the Licensed Property has not been tested or approved for use in any clinical applications. The use of the Licensed Property in conjunction with, or to operate or programme any device, machine, procedure or application used for clinical or life supporting purposes must be tested and approved by relevant governmental and inter-governmental agencies. No representation, opinion, or certification is made or given by Toumaz in relation to the suitability of the Licensed Property for use for such purposes.
9.3 Toumaz does not warrant or represent that the use of the Licensed Property as part of or to control or operate any device, machine, computer or process will not require licenses from third parties. It is your sole responsibility to acquire such licenses where necessary. Toumaz will not indemnify you for any liability, damage or loss arising from any infringement of any third party right arising from the use of the Licensed Property in connection with any device, machine, computer or process.
10. LIMITATION OF LIABILITY
Toumaz’s entire liability and your exclusive remedy against Toumaz in connection with this Licence Agreement, the Media or the Licensed Property shall be:
(a) the replacement of any Media not meeting Toumaz’s Limited Warranty in clause 6 above and which is returned to Toumaz with evidence of the date of receipt;
(b) if during the Warranty Period Toumaz is unable to deliver replacement Media which is free of material defects, you may terminate this Licence Agreement by returning the Media together with all copies of in your possession or control of Licensed Property in any form to Toumaz. Reasonable postage and packing costs and any fee paid will be refunded by Toumaz.
10. EXCLUSION OF LIABILITY
10.1 Except in respect of personal injury or death caused by the negligence of Toumaz, in no event shall Toumaz or its suppliers be liable to you for any damages, including any lost profits or savings or anticipated profits or savings, loss of data, loss of opportunity, loss or reputation, goodwill or business, or any consequential, special, incidental, or indirect damages of any kind arising out of the delivery, performance, use or inability to use the Media or Licensed Property even if Toumaz has been advised of the possibility of such damages in advance. Nothing in this Agreement limits a Party’s liability for fraudulent misrepresentation.
10.2 This Agreement gives you specific legal rights and you may have other rights that vary from country to country. Any mandatory rights that you may have as a consumer in any particular territory are not affected if you purchase the Licence for use in that territory.
11. OPEN SOURCE SOFTWARE
11.1 In conjunction with (but separately from) the Licensed Property Toumaz makes available to you third party software libraries (the “Open Source Software”) under the GNU Library General Public Licence Version 2, June 1991 (“Open Source Licence”). The right to use, copy and modify the Open Source Software and the right to convey, distribute, release and license the Open Source Software or any derivative work of the Open Source Software to any person are subject to the terms of Open Source Licence. Notice is hereby given to you of those terms. You agree that you shall comply with the terms of the Open Source Licence if you exploit the Open Source Software in any way. For the avoidance of doubt, you are permitted to deal with the Open Source Software as permitted in the Open Source Licence and nothing in this Agreement shall be construed to limit or restrict your right to exploit the Open Source Software in accordance with the terms of the Open Source Licence.
11.2 You shall not incorporate or combine the Licensed Property with any public software in such a way that would cause the Licensed Property to be subject to all or part of the open source licence obligations.
12. MISCELLANEOUS
12.1 You agree that Toumaz shall have the right, after supplying undertakings as to confidentiality, to audit any computer system on which the Licensed Property is installed in order to verify compliance with this licence agreement.
12.2 This Licence Agreement constitutes the entire agreement between you and Toumaz in respect to the subject-matter hereof and supersedes all proposals, representations, understandings, arrangements or prior agreements, whether oral or written and all other communications between the Parties relating to the same.
12.3 You acknowledge that you have not relied on or been induced to enter this Agreement by a representation other than those expressly set out in this Agreement. Toumaz shall not be liable to you for a representation that is not set out in this Agreement. This clause 12.3 does not affect any liability in respect of a fraudulent misrepresentation.
12.4 If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction or any other jurisdiction of any other provision of this Agreement.
12.5 Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole or part of this Agreement nor prejudice that party’s right to take subsequent action.
12.6 This Agreement and all matters arising from it including its formation, interpretation and effect shall by governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in connection with any dispute arising out of this Agreement or its subject-matter (including non-contractual claims).
13. CONTACT DETAILS
Should you have any questions concerning this Licence Agreement, or if you desire to contact Toumaz for any reason, please contact us at Licence Enquiries, Toumaz UK Limited, Building 3, 115 Milton Park, Abingdon, OX14 4RZ, Oxfordshire, United Kingdom or by email to info@toumaz.com.
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