TERMS AND CONDITIONS
END USER LICENCE FOR SOFTWARE ORDERED AND DOWNLOADED FROM www.thecloudmigrator.com (THE “WEBSITE”)
PLEASE READ CAREFULLY BEFORE ORDERING ANY SOFTWARE FROM THE WEBSITE:
This licence agreement (“Licence”) is a legal agreement between you (“Licensee” or “you”) and Cloud Technology Solutions Limited, a company registered in England and Wales with registered number 06738954 and registered office at Lowry House, 17 Marble Street, Manchester, M2 3AW (“Licensor”, “us” or “we”) for the CloudMigrator computer software (the “Software”) and any associated online and/or electronic documentation (the “Documents”).
We license use of the Software and the Documents to you on the basis of this Licence. We do not sell the Software or the Documents to you. We remain the owners of the Software and Documents at all times.
OPERATING SYSTEM REQUIREMENTS: Microsoft Windows-based operating system
IMPORTANT NOTICE TO ALL USERS:
* BY “CLICKING” AND CHECKING THE ACCEPTANCE BOX BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CONDITION 4 AND CONDITION 6.
* IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE ORDERING PROCESS NOW. IN THIS CASE YOU MAY NOT DOWNLOAD OR ORDER ANY SOFTWARE FROM THE WEBSITE.
You should print a copy of this Licence for future reference.
1. Grant and scope of this Licence
1.1 In consideration of payment by you of the licence fee set out in the ordering process to which you agreed (the “Licence Fee”) and you agreeing to abide by the terms of this Licence, we hereby grant to you a non-exclusive, non-transferable licence to use the Software and the Documents on the terms of this Licence.
1.2 You may:
(a) download, install and use the Software for your internal business purposes only:
(i) on an unlimited number of computer systems; or
(ii) if the Licence is a multi-user or network licence, by the number of concurrent users agreed between you and us in the ordering process on the Website;
(b) provided you comply with the provisions in condition 2; and
(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 us from time to time.
1.3 In downloading the Software from the Website, you warrant that you are a business and that you will be using the Software for your internal business purposes only.
1.4 When you download the Software, we will provide you with a licence key in order to activate and use the Software on your systems. The licence key, when used, will confirm the target domain name, the source, the expiry date of the licence key and the number of licensed users in respect of your use of the Software.
Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) not to copy the Software or the Documents 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 the Documents;
(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 our prior written consent to any third party; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) to keep all copies of the Software and the Documents secure;
(f) to supervise and control use of the Software and the Documents and ensure that the Software and the Documents are used by your employees and representatives in accordance with the terms of this Licence;
(g) to include our copyright notice on all entire and partial copies you make of the Software and the Documents on any medium;
(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 without prior written consent from us; and
(i) to comply with all applicable technology control or export laws and regulations.
3. Intellectual property rights
3.1 You acknowledge that all intellectual property rights in the Software and the Documents anywhere in the world belong to us, that rights in the Software and the Documents are licensed (not sold) to you, and that you have no rights in, or to, the Software and the Documents other than the right to use it in accordance with the terms of this Licence.
3.2 You acknowledge that you have no right to have access to the Software in source code form.
4. Limited warranty
4.1 We warrant that:
(a) the Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documents; and
(b) that the Documents correctly describes the operation of the Software in all material respects;
for a period of 90 days from the date of activation of the Software using the licence key as referred to in condition 1.4 (“Warranty Period”).
4.2 If, within the Warranty Period, you notify us in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documents, we will, at our absolute option, either repair or replace the Software, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.
4.3 The warranty in condition 4.1 above does not apply:
(a) if the defect or fault in the Software results from you having altered or modified the Software; and/or
(b) if the defect or fault in the Software results from you having used the Software in breach of the terms of this Licence.
5.1 If you discover a fault or failure of the Software to perform in accordance with the Documents, please log a call with our support team via www.thecloudmigrator.com/technical-support/. Our support team are available between 9am and 5pm on normal business days in the UK.
5.2 If you inform us of such a fault or failure, we will use our reasonable endeavors to respond to you, and resolve and rectify the fault or failure, as soon as reasonably practicable.
5.3 The provision of support in respect of the Software is included in the Licence Fee, but we reserve the right to charge you, at our time and materials rates from time to time, for the provision of support if the fault or failure is due to any of the following causes:
(a) any improper use, misuse or unauthorized alteration of the Software by you;
(b) any use of the Software by you in a manner inconsistent with the Documents;
(c) the use by you of any hardware or software not provided by us or approved by us in the Documents for use by you in connection with the Software; or
(d) the use of a non-current version or release of the Software.
6. Limitation of liability
6.1 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.
6.2 We only supply the Software for internal use by your business, and you agree not to use the Software for any re-sale purposes.
6.3 Subject to condition 6.5 below, we shall not in any circumstances whatever be liable to you, whether in contract, tort (including, without limitation, 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; and/or
(f) any indirect or consequential loss or damage.
6.4 Subject to condition 6.5 below, and other than the losses set out in condition 6.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including, without limitation, negligence) or otherwise, shall in all circumstances be limited to a sum equal to 110% of the Licence Fee.
6.5 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;
(c) any other liability that cannot be excluded or limited by English law.
6.6 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
7.1 We may terminate this Licence immediately by written notice to you if 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.
7.2 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must immediately cease all activities authorized by this Licence;
(c) you must immediately pay to us any sums due to us 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 us (at our option) all copies of the Software and Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
8.1 Any notice given to either us or you under or in connection with this Licence shall be in writing, addressed to the relevant party at its registered office or such other address as that party may have specified to the other party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or email.
8.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 8.1 above; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second normal working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if delivered by email, 24 hours after the email was sent (provided that a copy of such notice shall be delivered personally or sent by pre-paid first class post, recorded delivery or commercial courier within two normal working days of the time at which the email was sent).
8.3 The provisions of this condition 8 shall not apply to the service of any proceedings or other documents in any legal action.
9. Other important terms
9.1 This Licence constitutes the entire agreement between us and you and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us and you, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this in this Licence.
9.2 You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Licence or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
9.3 If any court or competent authority finds that any provision of this Licence (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Licence shall not be affected. If any invalid, unenforceable or illegal provision of this Licence would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
9.4 A waiver of any right or remedy under this Licence 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 us or you to exercise any right or remedy provided under this Licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Except as expressly provided in this Licence, the rights and remedies provided under this Licence are in addition to, and not exclusive of, any rights or remedies provided by law.
9.5 A person who is not us or you shall not have any rights under or in connection with this Licence.
9.6 Nothing in this Licence shall constitute a partnership or employment or agency relationship between us and you.
9.7 This Licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including, but not limited to, non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. We and you irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Licence or its subject matter or formation.