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1.1 'Software' The Software referred to in this document is the code, program, templates and images associated with the product known as The Tempest in all of its versions
1.2 Provided that you have paid all of the licence fees and any other sums payable as published from time to time in respect of your access to and use of the software, Clear Creative UK LTD grants you permission to use this software as specified in the copyright notice.
1.3 Save only to the extent that the same cannot be prevented by law, you shall not:
• Copy or permit others to copy the whole or any part of the Software, or arrange or create derivative works based on the Software;
• Modify, merge or combine the whole or any part of the Software with any other Software;
• Adapt, translate, de-compile, reverse-engineer, or disassemble the Software or permit others to do so;
• Assign, transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Software to any other person.
1.4 You shall be solely responsible for making or arranging for back-up copies to be made of all data that you use in conjunction with the Software in accordance with good data processing practice.
Clear Creative UK LTD Proprietary Rights
2.1 All intellectual property and other proprietary rights (including copyright and related rights) in the Software are and shall remain owned solely by Clear Creative UK LTD or its suppliers.
2.2 You agree not to remove, suppress or modify in any way any proprietary marking, including any Trade Mark or copyright notice on or in the Software or which are visible during its operation.
2.3 You shall permit Clear Creative UK LTD to check the use of the Software by you at all reasonable times. Defects Warranty and Limitation of Clear Creative UK LTD Liability
3.1 You acknowledge and agree that the Software cannot be tested in every possible combination and it is not within Clear Creative UK LTD’s control how and for what purpose the Software is used by you. The Software has not been prepared to meet your individual requirements and it is your responsibility to ensure that the facilities and functions of the Software meet your requirements.
3.2 Except as expressly provided for in this Agreement, Clear Creative UK LTD does not make any warranties, express or implied, regarding the Software, including any implied warranty of quality, merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance. 3.3 Clear Creative UK LTD is not responsible for the security of any data residing on your server or any other computer used or controlled by you.
3.4 Under no circumstances, including negligence, shall Clear Creative UK LTD, or it’s employees or officers be liable for direct, special, incidental, consequential or other damages (including lost profit, lost data, or downtime costs), arising out of the use, inability to use, or the results of use of the software, whether based in warranty, contract, tort or other legal theory, and whether or not advised of the possibility of such damages. Your use of the software is entirely at your own risk. Should the software prove defective, you assume the entire cost of all service, repair or correction.
3.5 Clear Creative UK LTD warrants that the Software when used properly will provide the functions and facilities described in Clear Creative UK LTD 's The Tempest feature list. Clear Creative UK LTD does not warrant that the operation of the Software will be uninterrupted or error free.
3.6 Clear Creative UK LTD's obligation and your exclusive remedy under clause 3.6 is limited to Clear Creative UK LTD (at its own expense) using reasonable endeavours to rectify any non-conformance with the warranty by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time or at Clear Creative UK LTD’s option replacing the Software accessed by you in whole or in part.
3.7 Clear Creative UK LTD will not be liable for any failure of the Software attributable to any modification to the Software by either you in default of your obligations under this Agreement or by persons other than you, or by combination of the Software with other software or equipment without Clear Creative UK LTD's express prior written consent.
Clear Creative UK LTD's Intellectual Property Rights Indemnity to you
4.1 Clear Creative UK LTD will have no liability for any claim of infringement based on:
• Use of other than the latest unaltered current release of the Software as supplied to you;
• Use a combination of the Software with equipment, programs or data not supplied by Clear Creative UK LTD; or
• Your refusal to use modified or replacement Software supplied or offered to be supplied by Clear Creative UK LTD.
4.2 This section 4 states the entire liability of Clear Creative UK LTD with respect to the infringement or alleged infringement of any third party intellectual property right of any kind by the Software.
Unauthorised Use
5.1 You are responsible for the consequences of any unauthorised access to or use of the Software.
5.2 You will indemnify Clear Creative UK LTD in respect of any third party claim for any loss, damage or expense including loss of profit or revenue occasioned by or arising directly or indirectly from any unauthorised access to or use of the Software.
Your Responsibilities
6.1 Clear Creative UK LTD reserves the right to suspend your access to the Software if it considers in its sole discretion that you are or have violated copyright or other intellectual property rights. You agree that Clear Creative UK LTD shall not be liable to you for any action Clear Creative UK LTD takes to suspend your access to the Software in accordance with this Agreement.
Term and Termination
7.1 This agreement will commence upon the date of purchase. No refunds will be made after 14 days of the purchase date.
7.2 On termination of this Agreement however caused, your authorisation to access and use the Software will automatically cease and you undertake immediately to cease accessing or using the Software.
7.3 The provisions of section 3 (Defects Warranty and Limitation of Clear Creative UK LTD's Liability) and section 8 (Confidentiality) shall survive any termination of this Agreement.
Confidentiality
8.1 You agree that you shall keep secret and confidential and shall only use for the purpose of performing your obligations under this Agreement all information or material of a technical or business nature or relating in any way to the Software or Clear Creative UK LTD's business, products or services.
Assignment
9.1 This Agreement is personal to you and you may not assign, sub-licence, or otherwise transfer your rights or obligations under it without Clear Creative UK LTD's prior written consent.
9.2 Clear Creative UK LTD reserves the right to fulfil any of its duties and powers under this Agreement by the use of agents and sub-contractors but Clear Creative UK LTD shall remain primarily liable for their performance.
9.3 Clear Creative UK LTD may assign the benefit of this Agreement.
Severability
10.1 If any part of this Agreement is found otherwise to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement and which will continue to be valid and enforceable to the fullest extent permitted by law.
Waiver
11.1 A failure of either you or Clear Creative UK LTD to exercise any right provided for in this Agreement shall not be deemed to be a waiver of any right unless such failure is confirmed expressly in writing by the relevant party to be a waiver.
Force Majeure
12.1 Our obligations are subject to the following:
• We are not responsible for the security of data residing on a server of yours or a third party designated by you.
12.2 We shall have no liability whatsoever for any failure or delay caused by your acts or omissions or resulting from actions by us in good faith to avoid violating law, rule or regulation of any governmental authority or which is caused by circumstances beyond our control whether foreseeable or not, including (without limit or cause) breakdown or failure in any transmission or communication links or any third party equipment, strikes or industrial disputes.
Entire Agreement and Variation
13.1 This Agreement is the complete and exclusive statement of the agreement between you and Clear Creative UK LTD relating to its subject matter.
Governing Law
14.1 This Agreement will be governed by and construed in accordance with the law of England and Wales and both you and Clear Creative UK LTD agree to submit to the exclusive jurisdiction of the courts of England and Wales.