» version 1.30 - posted on 2005-05-19
EULA - End User License Agreement
This is a legal agreement between Image Intelligence Ltd. and you, the user. You may not purchase a licence or use this software if you do not agree to this agreement. All previous agreements between the parties governing this software are superseded by this agreement, save as explicitly stated below.
1.1 "Image Intelligence": this term shall mean the companies Image Intelligence Ltd. (Registered Number 1099028) and Image Intelligence Software Ltd. (Registered Number 4121971) being private companies established, registered and trading in and from the United Kingdom and being wholly owned by a private group established, registered and located within the United Kingdom with business address at Underrock Studios, Symonds Yat, Herefordshire HR9 6BN and with its main trading website at www.imint.com.
1.2 "Software": menu components owned and copyrighted by Image Intelligence Software Ltd.
1.3 "Licensee": the person or entity obtaining a licence to use software under this licence agreement.
1.4 "Website": a sequence of web-pages and auxiliary resource files which simultaneously fulfil all of the following criteria: (i) installed on a maximum of one computer; (ii) conforming to an aesthetic, thematic, logical and functional unity; (iii) having a single base URL; (iv) belonging to and maintained on behalf of a single legal entity. A "web application" fulfills only the criterion: conforming to an aesthetic, thematic, logical and functional unity. An "instance of a web application", which is typically a single installation of a licenced web application on the premises of a single third party, fulfills all four of the criteria, so that an "instance of a web application" is regarded as identical to a "Website" for licencing purposes.
1.5 "Online documentation": all publicly accessible documents contained on the licence-issuer's website at http://www.happymenus.com
1.6 "Use": use of an applet is defined as (i) the integration of the applet into web pages on a website, and (ii) the unlimited downloading of copies of the applet over networks into the browser CACHE directories of 3rd parties as part of the normal process of viewing the website.
1.7 "Purchase agreement": an agreement extending beyond the licence agreement and comprising the content of the online form for ordering software placed on the Image Intelligence website.
1.8 "Local file system": the file system of a non-networked computer, the IP of which, as readable by the software, is 127.0.0.1.
1.9 Language variety: Users of American English are advised that British spelling is followed so, for example, that the noun "license" is spelt "licence".
2. GRANT OF LICENCE
2.1 By downloading, purchasing, installing or obtaining in any other manner the Software, the licensee agrees to this licence agreement. Under this licence agreement Image Intelligence grants the licensee a licence to use the Software in the manner described in the online documentation. The Software is licensed, not sold. The Software may be used on local file systems belonging to the licensee. Each time the licensee downloads, obtains or installs the Software or Software keys, the licensee reconfirms that this licence agreement in its most recent version supersedes any previous agreement between the parties, save as explicitly stated below.
2.1.1 EVALUATION USE. If the licensee has not purchased a licence, the licensee may nevertheless use the software
to the extent described in 2.1 for a period which shall not exceed 30 days. This period may not be extended. The
purposes of such use shall not extend beyond evaluation of the software.
2.2 Conditional licence extension. The licence may be extended to cover use on Websites wholly owned or designed by the licensee and for each of which the licensee has obtained a key from Image Intelligence subject to the conditions published by Image Intelligence at the time of licence extension. Each key serves the purpose of locking the Software to the specified Website using the naming convention supplied to Image Intelligence when the key was obtained. In the case of a Website having multiple naming conventions or acquiring additional naming conventions or changing its naming convention, the obtaining of a key for one naming convention shall not be construed as imparting a right to obtain further keys for any other naming conventions. In the case of the Software being integrated into a Website belonging to or maintained or designed by the licensee requiring more than one key for its proper functioning, the obtaining of one key does not entitle the licensee to the issue of further keys. By obtaining keys, the licence may only be extended to Websites exclusively and wholly owned or exclusively and wholly designed by the licensee.
2.3 Subject to the purchase agreement, Image Intelligence may provide the licensee with a key generator for convenient generation of keys as described in section 2.2. In so far as a licence is provided to use a key generator account for obtaining keys under section 2.2, this is restricted to use of the account on the Image Intelligence website. The key generator is for human operation and returns keys by email. The software comprising the key generator account may not be copied, moved or altered by the licensee and Image Intelligence retains full ownership and control of this software, including the right to alter the key generator software at any time. For reasons of maintenance and due to other unavoidable network events, the account may from time to time become temporarily inaccessible. Use of the key generator account is subject to an acceptable use policy ("AUP").
2.4 All licences and licence extensions are non-transferable, non-exchangeable and non-refundable, save as explicitly stated elsewhere in this agreement.
2.5 Licence to distribute. The licensee is granted a right to reproduce and distribute the Software provided that the licensee:
- distributes the Software complete and unmodified only as part of the licensee's value-added application or website ("Product"), where "value-added" includes but is not limited to the requirement that the Product must be sufficiently different from the Software that the Product does not compete with the Software or interfere with or reduce that part of the business of Image Intelligence which is derived from the licensing of menu components;
- includes the provisions of sections 2.2, 2.4, 4, 5.1, 5.2, 5.3, 6 and 7 of this agreement in the licensee's licence agreement for their Product;
- agrees to indemnify, hold harmless, and defend Image Intelligence from and against any claims or lawsuits, including legal fees, that arise or result from any use or distribution of the Software or Product;
- agrees to fully identify to Image Intelligence, on request, any or all parties ("Licensee's Customers") to whom the Software has been distributed under this agreement;
- agrees to require the Licensee's Customers to declare to Image Intelligence, on request, that they obtained the Software by redistribution from or through the licensee.
3. ACCEPTABLE USE POLICY ("AUP") FOR KEY GENERATOR ACCOUNTS
3.1 For the purposes of use of the key generator account, the licensee is known as the "account-holder". This AUP will be revised from time to time. An account-holder's use of the key generator account after changes to the AUP are posted on the Image Intelligence website will constitute the account-holder's acceptance of any new or additional terms of the AUP that result from those changes.
3.2 The licensee as account-holder undertakes:
- not to overload the Image Intelligence website through their use of the account and to respect the access rights of other users of this website.
- not to use the account to generate keys for 3rd party websites, unless these websites are wholly designed by the account-holder.
- to use the account only to generate keys for websites which the account-holder either owns or designs; ownership of a website is defined as ownership of the intellectual content of the website, not the hardware on which it is placed nor the software used for transmitting and displaying it.
- to use the account only in conformity with the instructions for its use; actions such as the study of source code or unauthorised access to additional files are prohibited.
- not to modify, copy or move the software comprising the account, nor to attempt to do this.
- not to pass on passwords for accessing the account to any person who does not possess a licence issued by Image Intelligence to use the account.
- to ensure that passwords remain inaccessible to unauthorised persons and to inform Image Intelligence immediately if a password has become known to any unauthorised person.
- to inform Image Intelligence immediately of any other possible security breach regarding usage of the account, including generation of keys by unauthorised persons.
- to demonstrate satisfactorily to Image Intelligence, when requested to do so, that any particular website for which a key is generated is either owned or designed by the account-holder.
- to provide to Image Intelligence, when requested to do so, details of the identity of owners and designers of websites for which keys are generated under this agreement, including the names of the people and the names of the organisations for which they work.
- to describe to Image Intelligence, when requested to do so, in the case of joint projects with 3rd parties in which the licensed software is used, the division of work between the licensee and the 3rd parties.
3.3 In the event of generating a key for a website neither wholly owned nor wholly designed by the licensee as account-holder, the licensee is liable to pay the price of an appropriate separate licence as listed at that time on the Image Intelligence website. Notwithstanding such payment, Image Intelligence may nevertheless suspend the account until it is satisfied that the undertakings of section 3.2 will be properly observed by the licensee.
3.4 In the event of any breach of the undertakings of section 3.2 or any breach of the remainder of this licence agreement, Image Intelligence may suspend or cancel the account. The licensee will be notified immediately of this by email.
3.5 Use of the key generator may be subject to usage charges as published from time to time by Image Intelligence. Bills will be issued from time to time. In the event of the licensee not paying these charges or any other money owed to Image Intelligence within the time period laid down by Image Intelligence, (i) all licence extensions associated with keys generated during the billing period are suspended and the licensee must immediately suspend all use of the software at all locations associated with these keys, (ii) the key generator account will be suspended and rendered unusable to the licensee. Suspensions of accounts and licences continue until all money owed to Image Intelligence is paid. Image Intelligence is entitled to charge for reactivation of an account suspended for payment default. The licensee is liable to pay all debt recovery costs incurred by Image Intelligence and all costs incurred for any reason and by any person or by any organisation as a result of the suspension of the account and licence extensions.
Copyright and ownership of the software subsists with Image Intelligence Software Ltd., Herefordshire, England. In purchasing a licence as defined above the licensee obtains a licence limited to using a copy of the software in the fashion described in the documentation available on our website. The licensee may not rent, lease, redistribute or resell the software or any copy of it, save as explicitly agreed in section 2 above. The licensee may not modify, reverse engineer, decompile or disassemble the software, the programme code or any part of it, or allow any such activity on the part of any third party.
5. GUARANTEE, LIABILITY AND REFUNDS.
5.1 All software is provided by us "as-is" and without any kind of guarantee. Purchasers are expressly reminded that no java applet works 100% of the time. To the maximum extent permitted by applicable law, Image Intelligence disclaims all representations, warranties, conditions and other terms, either express or implied, including but not limited to implied warranties and/or conditions of merchantability and fitness for a particular purpose, with regard to the software and the accompanying written material.
5.2 LIABILITY EXCLUSION. THE AUTHOR, COPYRIGHT HOLDERS AND DISTRIBUTORS OF THIS SOFTWARE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY, INTELLECTUAL OR PERSONAL LOSS) SUFFERED BY ANYONE AS A RESULT OF USING (WHERE "USE" INCLUDES, BUT IS NOT LIMITED TO, BOTH DESIGNING A WEB SITE AND VISITING A WEB SITE WHERE THE SOFTWARE IS IN USE), MODIFYING OR DISTRIBUTING THIS SOFTWARE. NO GUARANTEE OR REPRESENTATION, EITHER EXPRESS OF IMPLIED, IS MADE ABOUT THE SOFTWARE'S SUITABILITY FOR ANY PURPOSE. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIABILITY EXCLUSION, THE LIABILITY OF THE AUTHOR, COPYRIGHT HOLDERS AND DISTRIBUTORS SHALL BE LIMITED TO THE PURCHASE PRICE OF THE SOFTWARE. THE LICENCE DOES NOT EXTEND TO USE OF THE SOFTWARE IN JURISDICTIONS WHERE LIABILITY MAY EXCEED THE PURCHASE PRICE OF THE SOFTWARE.
5.3 SOFTWARE RELIABILITY. PARTS OF THIS SOFTWARE ARE WRITTEN IN JAVA AND RELY FOR THEIR OPERATION ON JAVA INTERPRETERS PROGRAMMED BY THIRD PARTY COMPANIES OVER WHOM IMAGE INTELLIGENCE HAS NO CONTROL. JAVA TECHNOLOGY AND DERIVED PRODUCTS ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS IN WHICH THE FAILURE OF JAVA TECHNOLOGY AND DERIVED PRODUCTS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. IMAGE INTELLIGENCE DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES. THE LICENSEE REPRESENTS AND WARRANTS THAT IT WILL NOT USE THE SOFTWARE FOR SUCH PURPOSES.
5.4 Product satisfaction. The licensee represents and warrants to have successfully and fully tested the trial versions before purchase; by testing the trial versions the licensee has established before purchase that the product is fit for their purposes and expresses by making the purchase their full satisfaction with the product. Should any licensee fail to test the trial versions fully before purchase of the full version, they recognize under this agreement that they could and should have performed the testing and have no claim against the author, copyright holders or distributors regarding usability, fitness for purpose and product satisfaction.
5.5 Refund Policy. (i) In conformity with DIRECTIVE 97/7/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 1997 on the protection of consumers in respect of distance contracts, article 6, paragraph 3, there is no general right of withdrawal from the contract by the licensee and no refund right due to the following reasons: "the consumer may not exercise the right of withdrawal provided for in paragraph 1 in respect of contracts:
- for the provision of services if performance has begun, with the consumer's agreement, before the end of the seven working day period referred to in paragraph 1,....
- for the supply of goods made to the consumer's specifications or clearly personalized or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly,
- for the supply of audio or video recordings or computer software which were unsealed by the consumer,..."
(ii) The licensee may, however, cancel an associated subscription package if this has been purchased as well, in which case the licensee can expect a refund of an appropriate proportion of the unused parts of the subscription price. (iii) In the event of the cancellation of the key generator account, usage charges shall apply up to the point of time of deactivation; cancellation of the key generator account has no effect on the validity of software licences and keys purchased and paid for prior to account deactivation - these remain valid unless they are or have become invalid under a different part of this licence agreement; payment for licences and licence extensions (except for unused portions of subscriptions) obtained by the licensee prior to cancellation remains due and non-refundable.
5.6 Support. Support is not included under the licence or purchase agreements but may be provided without charge by Image Intelligence at its own discretion.
6. BREACH OF LICENCE AGREEMENT.
If any part of this agreement is broken by the licensee, the rights to use the Software granted in section 2 are revoked and the software and any copies possessed by the licensee must be destroyed. This does not exclude further criminal or civil proceedings against the licensee.
The conditions of the granting of licences under this agreement are covered by the laws of the United Kingdom and in particular by the Copyright, Designs and Patent Act 1988 and Schedule 5 paragraph 1 of the (United Kingdom) Value Added Tax Act, Image Intelligence Ltd. and Image Intelligence Software Ltd. being companies established, registered and trading from the United Kingdom. The place of supply of the sale of such licences, and the place of their sale, is as defined by the latter act.
8. Additional Points
Additions to this agreement may only apply as explicitly agreed and signed by both parties in writing and listed under section 8 of an extended licence agreement.