ALLEN & HEATH LIMITED
SOFTWARE LICENCE AGREEMENT
User Licence
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE
USING YOUR NEW PRODUCTS
This licence agreement (Licence) is a
legal agreement between you (you) and Allen & Heath
Limited of Kernick Industrial Estate, Penryn, Cornwall TR10 9LU
(us or we) for use of the proprietary Allen &
Heath and third party software products (Software),
incorporated into the Allen & Heath Mix Rack and iLive
Control Surface products you have purchased (Products),
and includes your use of the hard copy, online or electronic
documentation supplied with the Software (Documentation).
BY SELECTING THE ACCEPT BUTTON, BREAKING THE SEAL
ON THE SOFTWARE PACKAGE OR INSTALLING OR OTHERWISE USING THE
SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND
AGREE TO BE BOUND BY THE TERMS OF THIS LICENCE. IF YOU DO NOT
AGREE WITH THE TERMS OF THIS LICENCE, DO NOT INSTALL THE SOFTWARE
OR, IF YOU HAVE RECEIVED THE SOFTWARE, PROMPTLY RETURN IT AND ANY
ACCOMPANYING ITEMS (INCLUDING ANY WRITTEN MATERIALS AND
PACKAGING) TO YOUR SUPPLIER TOGETHER WITH PROOF OF PURCHASE FOR A
FULL REFUND. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS
LICENCE, YOU ARE NOT AUTHORISED TO USE THE SOFTWARE FOR ANY
PURPOSE WHATSOEVER. ALSO, BY INSTALLING, COPYING OR OTHERWISE
USING UPDATES OR UPGRADES FROM US YOU AGREE TO BE BOUND BY ANY
ADDITIONAL LICENCE TERMS THAT ACCOMPANY ANY SUCH UPDATES AND/OR
UPGRADES. IF YOU DO NOT AGREE TO THE ADDITIONAL LICENCE TERMS
THAT ACCOMPANY SUCH UPDATES AND/OR UPGRADES, YOU MAY NOT INSTALL
OR USE SUCH UPDATES AND/OR UPGRADES.
GENERAL
The Software (including any Boot ROM code and
Documentation, and whether on disc, in read only memory, on any
other media or in any other form) is licenced, not sold, to you
by us for use only under the terms of this Licence. We reserve
all rights not expressly granted to you. The terms of this
Licence will govern any software updates or upgrades provided by
us that replace and/or supplement the original Software, unless
such update or upgrade is accompanied by a separate licence in
which case the terms of that licence will apply that update or
upgrade. Updates and upgrades are made available to you at our
sole discretion from time to time and exclude any software
marketed and licenced by us as a new version or release of the
Software.
Unless stated otherwise, Software includes
that software which is captive in, or otherwise supplied with,
the Products including the Allen & Heath applications running
on the MPC852T processors (distributed as iDRLiveStageBox.bin
and iLive.bin), the Allen & Heath Java application running on
a single board computer, the Allen & Heath H8 firmware for
controlling motor fader sub-system and the Allen & Heath PIC
firmware for PWM LED brightness control.
The Products are also supplied with elements
of third party software which is separate to our Software and is
supplied subject to the terms of the GNU General Public Licence
(GPL) or the GNU Library/Lesser General Public Licence (LGPL), as
the case may be. Subject to clause 14 and the terms of the
relevant GPL or LGPL you may modify or replace these items of
software. We are not obliged to provide any warranty,
maintenance, technical or other support for such software or any
modified form of it. Your attention is drawn to section 14
below.
GRANT AND SCOPE OF LICENCE
In consideration of your
agreeing to abide by the terms in this agreement, we hereby grant
to you a non-exclusive, non-transferable licence to use the
Software and the Documentation on the terms of this Licence for
use only on the Products.
You may:
download, install and
use the Software for your private or internal business purposes
only, either (as agreed between the parties):
if the Licence is a
single-user licence or the Software is for single use, on one
Product system; or
if the Licence is a
multi-user or network licence, for the number of concurrent users
agreed between you and us;
make up to one copy of
the Software for back-up purposes only;
receive and use any
free supplementary software code or update of the Software
incorporating "patches" and corrections of errors as we may
provide to you from time to time; and
use any Documentation
in support of your permitted use of the Software.
LICENSEE'S
UNDERTAKINGS
Except as expressly set
out in this Licence or as permitted by any local law, you
undertake:
not to copy the
Software or Documentation 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;
not to translate,
merge, adapt, vary or modify the Software or Documentation,
assign the benefit or burden of this Licence in whole or in part,
or to allow the Software to become the subject of a charge, lien
or encumbrance;
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, unless authorised by
us in writing;
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 things 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:
is used only for the
purpose of achieving inter-operability of the Software with
another software program; and
is not unnecessarily
disclosed or communicated to any third party without our prior
written consent; and
is not used to create
any software which is substantially similar to the Software;
not to permit the
Software to be accessed through an electronic network beyond your
normal place of business;
to keep all copies of the Software secure and
to maintain accurate and up-to-date records of the number and
locations of all copies of the Software;
to supervise and
control use of the Software and ensure that your employees,
representatives and customers use the Software in accordance with
the terms of this Licence; and
to include our and our
licensors’ copyright notices on all entire and partial
copies you make of the Software or any third party software we
supply on any medium.
You must permit us and
our representatives, at all reasonable times and on reasonable
advance notice, to inspect and have access to any premises at
which the Software or the Documentation is being kept or used, to
the Products and other relevant computer equipment located there,
and to any records kept pursuant to this Licence, for the purpose
of ensuring that you are complying with the terms of this
Licence.
INTELLECTUAL PROPERTY
RIGHTS
You acknowledge that
all intellectual property rights in the Software and the
Documentation throughout the world belong to us and our
licensors, that rights in the Software are licensed (not sold) to
you, and that you have no rights in, or to, the Software or the
Documentation other than the right to use them in accordance with
the terms of this Licence.
Save as expressly
stated in this Licence you acknowledge that you have no right to
have access to the Software in source code form or in unlocked
coding or with comments.
WARRANTY
We warrant that:
where the Software is
supplied on a particular medium, the medium on which the Software
is stored and distributed is at the time it is supplied, and will
be for the period of 90 days thereafter (Warranty Period),
free from defects in design, material and workmanship under
normal use. If a defect in the medium occurs during the Warranty
Period, the Licensor will replace it free of charge if you return
it to us with proof of purchase and (so far as you are able) a
documented example of such defect or error; and
during the Warranty
Period, the Software will, when properly used, perform
substantially in accordance with the functions described in the
Documentation, and the Documentation correctly describes the
operation of the Software in all material respects.
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 Documentation meet
your requirements.
You acknowledge that
the Software may not be free of errors or bugs and you agree that
the existence of any minor errors shall not constitute a breach
of this Licence.
If, within the Warranty
Period, you notify us in writing of any defect or fault in the
Software in consequence of which it fails to perform
substantially in accordance with the Documentation, and such
defect or fault does not result from you having amended the
Software or used it in contravention of the terms of this
Licence, we will, at our sole option, repair or replace the
Software, provided that you make available all the information
that may be necessary to assist us in resolving the defect or
fault, including sufficient information to enable the Licensor to
recreate the defect or fault.
OUR LIABILITY
Nothing in this Licence
shall exclude or in any way limit our liability for fraud, or for
death and personal injury caused by our negligence, or any other
liability to the extent the same may not be excluded or limited
as a matter of law.
Subject to condition
6.1, we shall not be liable under or in connection with this
Licence or any collateral contract for any:
loss of income;
loss of business
profits or contracts;
business
interruption;
loss of the use of
money or anticipated savings;
loss of
information;
loss of opportunity,
goodwill or reputation;
loss or damage caused by any third party
software covered by a General Public Licence;
loss or damage caused by the improper use or
operation or neglect of either the Software or the Hardware;
loss of, damage to or
corruption of data; or
any indirect or
consequential loss or damage of any kind howsoever arising and
whether caused by tort (including negligence), breach of contract
or otherwise.
Subject to condition
6.1 and condition 6.2, our maximum aggregate liability under or
in connection with this Licence, or any collateral contract,
whether in contract, tort (including negligence) or otherwise,
shall be limited to a sum equal to the cost of replacing the
Software.
Subject to condition
6.1, condition 6.2 and condition 6.3, our liability for
infringement of third party intellectual property rights shall be
limited to breaches of rights subsisting in the UK.
This Licence sets out
the full extent of our obligations and liabilities in respect of
the supply of the Software and Documentation. In particular,
there are no conditions, warranties, representations or other
terms, express or implied, that are binding on us except as
specifically stated in this Licence. Any condition, warranty,
representation or other term concerning the supply of the
Software and Documentation which might otherwise be implied into
or incorporated in this Licence, or any collateral contract,
whether by statute, common law or otherwise, is hereby excluded
to the fullest extent permitted by law.
TERMINATION
We may terminate this
Licence immediately without notice if you
fail to comply with the terms of this Licence.
Upon termination for any reason:
all rights granted to
you under this Licence shall cease;
you must cease all
activities authorised by this Licence; and
you must immediately
delete or remove the Software in your possession and immediately
destroy or return to us (at our option) all copies of the
Software then in your possession, custody or control and, in the
case of destruction, certify to us that you have done so.
TRANSFER OF RIGHTS AND
OBLIGATIONS
This Licence is binding
on you and us and on our respective successors and assigns.
You may not transfer,
assign, charge or otherwise dispose of this Licence, or any of
your rights or obligations arising under it without our prior
written consent.
We may transfer,
assign, charge, sub-contract or otherwise dispose of this
Licence, or any of our rights or obligations arising under it, at
any time during the term of the Licence.
NOTICES
All notices given by you to us must be given to
Allen & Heath Limited at Kernick Industrial Estate, Penryn,
Cornwall TR10 9LU. We may give notice to you at either the e-mail
or postal address you provided when purchasing the Products.
Notice will be deemed received and properly served 24 hours
after an e-mail is sent, or three days after the date of posting
of any letter. In proving the service of any notice, it will be
sufficient to prove, in the case of a letter, that such letter
was properly addressed, stamped and placed in the post and, in
the case of an e-mail, that such e-mail was sent to the specified
e-mail address of the addressee.
EVENTS OUTSIDE THE
LICENSOR'S CONTROL
We will not be liable
or responsible for any failure to perform, or delay in
performance of, any of our obligations under this Licence that
are caused by an event outside of our reasonable control.
WAIVER
If we fail, at any time
during the term of this Licence, to insist upon strict
performance of any of your obligations under this Licence, or if
we fail to exercise any of the rights or remedies to which we are
entitled under this Licence, this shall not constitute a waiver
of such rights or remedies and shall not relieve you from
compliance with such obligations.
A waiver by us of any
default shall not constitute a waiver of any subsequent
default.
No waiver by us of any
of these terms and conditions shall be effective unless it is
expressly stated to be a waiver and is communicated to you in
writing.
SEVERABILITY
If any of the terms of this
Licence are determined by any competent authority to be invalid,
unlawful or unenforceable to any extent, such term, condition or
provision will to that extent be severed from the remaining
terms, conditions and provisions which will continue to be valid
to the fullest extent permitted by law.
ENTIRE AGREEMENT
This Licence and any
document expressly referred to in it represents the entire
agreement between us in relation to the licensing of the Software
and Documentation and supersedes any prior agreement,
understanding or arrangement between us, whether oral or in
writing.
We each acknowledge
that, in entering into this Licence, neither of us has relied on
any representation, undertaking or promise given by the other or
be implied from anything said or written in negotiations between
us prior to entering into this Licence except as expressly stated
in this Licence.
Neither of us shall
have any remedy in respect of any untrue statement made by the
other, whether orally or in writing, prior to the date we entered
into this Licence (unless such untrue statement was made
fraudulently) and the other party’s only remedy shall be
for breach of contract as provided in these terms and
conditions.
THIRD PARTY
ACKNOWLEDGMENT
Portions of this Software utilise or include
third party software and other copyrighted material.
Acknowledgements, licencing terms and disclaimers for such
material are contained in the Documentation for the Software, and
your use of such material is governed by their respective
terms.
Certain software libraries and other third
party software included with the Software are free software and
licenced under the terms of the GNU General Public Licence (GPL)
or the GNU Library/Lesser General Public Licence (LGPL), as the
case may be. You may obtain a complete machine-readable copy of
the source code for such free software under the terms of the GPL
or LGPL, as the case may be, without charge except for the cost
of media, shipping, and handling, upon written request to us.
The GPL/LGPL software is distributed in the hope that it will be
useful, but WITHOUT ANY WARRANTY, without even the implied
warranty of SATISFACTORY QUALITY or FITNESS FOR PURPOSE. A copy
of the GPL and LGPL can be found at http://www.gnu.org/licences/gpl.html.
LAW AND JURISDICTION
This Licence is governed by
English law. Any dispute arising from, or related to, any term of
this Licence shall be subject to the non-exclusive jurisdiction
of the courts of England and Wales.
ALLEN AND HEATH LIMITED
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