IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE UTILISING ANY SOFTWARE OR SERVICES FROM THIS WEBSITE:
This licence and service agreement (Licence) is a legal agreement between you (Licensee or you) and Foregenix Limited First Floor, 8-9 High Street, Marlborough, Wiltshire, SN8 1AA, United Kingdom (Licensor or we) for this Foregenix FGX-Web software product (Software), which includes computer software, the data supplied with it, and online documentation (Documentation) and for the provision by the Licensor of related services.
BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE AND/OR SERVICES TO YOU AND YOU MUST DISCONTINUE THE PROCESS NOW. IN THIS CASE YOU MAY NOT DOWNLOAD OR UTILISE ANY SOFTWARE OR SERVICES FROM THIS WEBSITE.
1 Grant and scope of licence
1.1 In consideration for the payment by you of the monthly licence fee (the Licence Fee) for the tier of service you select (being Alert, Protect and Enterprise (each, a Service Tier)) and any additional administration fees (for example, for exporting data), all as set out in more detail in this website, and you agreeing to abide by the terms of this Licence, the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Licence and agrees to provide the website log monitoring, processing, alerting and other services (Services) applicable to the relevant Service Tier for the period covered by the Licence Fee (the Service Period).
1.2 You may:
1.2.1 download, install and use the Software on one website ((Host);
1.2.2 use any Documentation in support of the use permitted under condition 1.1 and make such number of copies of the Documentation as are reasonably necessary for its lawful use;
1.2.3 receive and use any free update of the Software incorporating "patches" and corrections of errors as may be provided by the Licensor from time to time; and
1.2.4 (depending on your Service Tier) remotely access, view and (subject to your having paid or agreed to pay appropriate administration fees) export and download data we make available as part of the Services.
2 Licensee's undertakings
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
2.1.1 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;
2.1.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation or the Services;
2.1.3 not to make alterations to, or modifications of, the whole or any part of the Software or the Services, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
2.1.4 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:
(a) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(b) is not unnecessarily disclosed or communicated without the Licensor's prior written consent to any third party; and
(c) is not used to create any software which is substantially similar to the Software;
2.1.5 [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;]
2.1.6 to supervise and control use of the Software and the Services and ensure that the Software and the Services are used by your employees and representatives in accordance with the terms of this Licence;
2.1.7 to replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this Licence immediately on receipt;
2.1.8 to include the copyright notice of the Licensor on all entire and partial copies you make of the Software on any medium;
2.1.9 not to provide or otherwise make available the Software or any data or reports made available as part of the Services 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 the Licensor;
2.1.10 not to use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services or the Software;
2.1.11 not to use data which is made available as part of the Services and belongs to a third party for any purpose other than viewing and downloading in accordance with the terms of this Licence, unless the third party in question has consented to your use of such data; and
2.1.12 to comply with all applicable laws and regulations in your use of and access to the Documentation, the Software and the Services.
2.2 You must permit the Licensor and his 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 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.
3.1 Provided you have duly completed the registration process prior to downloading the Software, depending on the Service Tier you have selected, the Licensor's technical support staff will endeavour to answer by telephone or email (as applicable to the relevant Service Tier for the period covered by the Licence Fee (the Service Period)) any queries which you, as the original registered purchaser, may have regarding the use or application of the Software during the Service Period (as defined in clause 4 below). For telephone support please call +44 (0) 845 309 6235 between the hours of 0800hrs and 1800hrs Monday to Friday. For email support please email firstname.lastname@example.org.
4 Access to the portal.foregenix.com Website and Automatic Software Updates
4.1 Provided you have duly completed the registration process prior to downloading the Software and subject to your having paid all Licence Fees and administration fees due and payable as applicable to the relevant Service Tier for the period covered by the Licence Fee, you will receive during the Service Period Software updates incorporating "patches" and corrections of errors as provided by the Licensor from time to time and access to the Foregenix portal so that you can receive results. For the avoidance of doubt you will not receive any new services or features which are introduced or become available unless you have paid any relevant additional fee.
4.2 In addition to product registration information, the Licensor must process and store certain information about your computer systems to provide maintenance and related support services. To improve its products, the Licensor may periodically upload information electronically from installed Software about product usage, detected malware or potentially unwanted files and may use service traffic to improve its databases and heuristics. You agree that the Licensor may use uploaded data from installed Software to improve products and service, share data that has been identified as high risk, malicious or unwanted content with affiliates and security partners and use and disclose uploaded data for analysis or reporting purposes provided that such use, sharing or disclosure does not identify You or include any information that can be used to identify any individual person. The Licensor reserves the title, ownership and all rights and interest to any intellectual property or work product resulting from its use and analysis of such information.
5 Intellectual Property Rights and Data
5.1 You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to the Licensor, 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.
5.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
5.3 The integrity of this Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software of the Licensor are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor apply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPM.
6.1 The Licensor warrants that
for a period of 30 days from the date of installation (Warranty Period) the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and that the Documentation correctly describes the operation of the Software in all material respects provided that no warranty or representation is given as to the accuracy of results provided to you through your use of the Software and, subject to clause 7, the Licensor shall not be liable for any such inaccuracies.
6.2 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.
6.3 You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this Licence.
6.4 If, within the Warranty Period, you notify the Licensor 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, the Licensor will, at its sole option, either repair or replace the Software, provided that you make available all the information that may be necessary to help the Licensor to remedy the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
6.5 Any Open-Source Software provided by the Licensor (including those software tools or components thereof listed in the copyright notice linked to this Licence) may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to clause 7.5. Without limiting the generality of the foregoing, the names of the copyright holders of any such Open-Source Software or any proprietary third-party software licences relating to the Software (“Third Party Licensors”) may not be used to endorse or promote products derived from the Open-Source Software without the prior written agreement of the relevant Third Party Licensor. For the purpose of this clause and clauses 6.6 and 7.6, “Open-Source Software” means open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
6.6 THE OPEN-SOURCE SOFTWARE IS PROVIDED BY THE THIRD PARTY LICENSORS AND THEIR CONTRIBUTORS “AS IS”' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE DISCLAIMED. IN NO EVENT SHALL THE THIRD PARTY LICENSORS OR THEIR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7 Licensor's and Licensee's liability
7.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or deliberate personal repudiatory breaches of this agreement.
7.2 Subject to condition 7.1, the Licensor's liability for losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude, even if such losses result from the Licensor's deliberate personal repudiatory breach of this agreement:
7.2.1 loss of income;
7.2.2 loss of business profits or contracts;
7.2.3 business interruption;
7.2.4 loss of the use of money or anticipated savings;
7.2.5 loss of information;
7.2.6 loss of opportunity, goodwill or reputation;
7.2.7 loss of, damage to or corruption of data; or
7.2.8 any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise; provided that this condition 7.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of condition 6 or any other claims for direct financial loss that are not excluded by any of the categories of loss in clauses 7.2.1 to 7.2.8 inclusive.
7.3 Subject to condition 7.1 and condition 7.2, the Licensor's 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 100% of the Licence Fees actually paid.
7.4 Subject to condition 7.1, condition 7.2 and condition 7.3, the Licensor's liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
7.5 This Licence sets out the full extent of the Licensor's 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 the Licensor 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.
7.6 The Licensee shall comply with any licences relating to any Open-Source Software, including the General Public Licence (if applicable) and any proprietary third-party software licences relating to the Software, and shall indemnify and hold the Licensor harmless against any loss or damage which the Licensor may suffer or incur as a result of the Licensee's breach of such terms. The Licensor may treat the Licensee's breach of any such terms as a breach of this Licence.
7.7 To the extent permitted by applicable law, the Licensee undertakes to indemnify and hold the Licensor harmless from any loss, liability, cost or expense (including without limitation legal and professional costs) suffered or incurred arising out of or in connection with:
7.7.1 any breach by the Licensee of this Licence;
7.7.2 any breach by the Licensee of any applicable laws and regulations in connection with the Services;
7.7.3 your use of the Services;
7.7.4 any claims made by or on behalf of any third party relating directly or indirectly to your use of the Services or the Software or the data made available to you as part of the Services;
7.7.5 any breach by you of data protection laws and regulations or of your obligations of privacy to any third party.
8.1 The Licensor and the Licensee may each terminate this Licence by giving one month's prior written notice to the other.
8.2 The Licensor may terminate this Licence immediately by written notice to you if:
8.2.1 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; or
8.2.2 a petition for a bankruptcy order to be made against you has been presented to the court; or
8.2.3 the Licensee (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986).
8.3 Upon termination for any reason:
8.3.1 all rights granted to you under this Licence shall cease;
8.3.2 the Licensor shall stop providing the Services and you will stop accessing the Services;
8.3.3 you must cease all activities authorised by this Licence;
8.3.4 you must immediately pay to the Licensor any sums due to the Licensor under this Licence;
8.3.5 you shall not be entitled to receive and the Licensor shall not be obliged to provide to you any of the historical data relating to the Services provided to you during the Service Period; and
8.3.6 you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.
9 Transfer of rights and obligations
9.1 This Licence is binding on you and us, and on our respective successors and assigns.
9.2 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.
9.3 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.
10.1 All notices given by you to us must be given to Foregenix Limited at First Floor, 8-9 High Street, Marlborough, Wiltshire, SN8 1AA, United Kingdom. We may give notice to you at either the e-mail or postal address you provided to us, our representative or authorised reseller when purchasing the Software, or when registering for Services on this website. Notice will be deemed received and properly served immediately when posted on our website, 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.
11 Events outside our control
11.1 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 is caused by events outside our reasonable control (Force Majeure Event).
11.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
11.2.1 strikes, lock-outs or other industrial action;
11.2.2 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
11.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
11.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
11.2.5 impossibility of the use of public or private telecommunications networks;
11.2.6 the acts, decrees, legislation, regulations or restrictions of any government.
11.3 Our performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
12.1 The Licensor may from time to time amend the terms of this Licence or any additional terms that apply to the Services, whether to reflect changes to the Services or changes in law or otherwise. Changes will not have retrospective effect and will only take effect 14 days after they shall have first appeared on this website. You should therefore review the terms regularly. If you do not agree to the amended terms you should terminate the Licence. No amendment to this Licence will be binding unless agreed in writing by the Licensor and the Licensee or you accepted the terms online or you continue to use the Services after such amendments have become effective in accordance with this clause.
13.1 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.
13.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
13.3 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.
14 Copyright Notices and Acknowledgements
14.1 This Software makes use of various Open Source Software, or components thereof, and as such we would like to acknowledge the copyright on the Open Source Software. Please click here for the copyright notices and acknowledgements.]1
15.1 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.
16 Entire agreement
16.1 This Licence and any document expressly referred to in it constitute the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of the Software and Documentation.
16.2 We each acknowledge that, in entering into this Licence (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Licence or not) other than as expressly set out in this Licence or those documents.
16.3 Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in this Licence.
16.4 Nothing in this clause shall limit or exclude any liability for fraud.
17 Law and jurisdiction
17.1 This Licence, 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 non-exclusive jurisdiction of the English courts.