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6 In this Agreement the following expressions have the following meanings:
8 "Harmful means any virus, worm, time bomb, time lock, drop dead
9 Element" device, trap and access code or anything else that
10 might disrupt, disable, harm or impede the operation of
11 any information system, or that might corrupt, damage,
12 destroy or render inaccessible any software, data or
13 file, or that may allow any unauthorised person to gain
14 access to, any information system or any software, data
15 or file on it;
17 "Intellectual means patents, trade marks, service marks, registered
18 Property" designs, copyrights, database rights, design rights,
19 know-how, confidential information, applications for
20 any of the above, trade secrets and any similar right
21 recognised from time to time in any jurisdiction,
22 together with all rights of action in relation to the
23 infringement of any of the above;
25 "Software" means the software and any accompanying documentation
26 downloaded by the Licensee; and
28 "STFC" means the Science and Technology Facilities Council,
29 one of whose principal offices is at Rutherford
30 Appleton Laboratory, Harwell Oxford, Didcot, OX11 0QX.
34 2.1 In consideration of the confidentiality undertakings given by the Licensee
35 pursuant to Clause 4, STFC grants the Licensee, for the duration of this
36 agreement, an indefinite, non-exclusive, non-transferable licence to use
37 the Software solely for personal use on the terms and conditions of this
38 Agreement provided that:
40 2.1.1 the Licensee must be employed by, or a student of, a non-profit
41 educational, academic or research institute;
43 2.1.2 the Licensee may not distribute any of the Software to any third
44 party, or share its use with any third party (regardless of whether
45 such third party is from the same institution), and the Licensee
46 may not sub-license the use of any of the Software;
48 2.1.3 the Licensee may not use the Software for any commercial purposes;
49 and
51 2.1.4 the Licensee may not copy any of the Software except for the
52 purposes of making a reasonable number of back-up copies, nor may
53 the Licensee modify the Software or incorporate or imbed it into
54 any other software products, except to optimise its performance for
55 the Licensee's use on a particular platform.
57 2.2 The licence granted in clause 2.1 relates only to the release of the
58 Software at the date of this Agreement. The Licensee must acquire a new
59 licence from STFC to use any future release of the Software.
61 2.3 The Licensee will not tamper with or remove any copyright or other
62 proprietary notice or any disclaimer that appears on or in any part of
63 the Software and will reproduce the same in all copies of the Software.
65 2.4 In any published work produced by the Licensee which includes results
66 achieved by using the Software, the Licensee shall acknowledge that the
67 Software was used in producing the results contained in such publication
68 by including the following citation: "HSL, a collection of Fortran codes
69 for large-scale scientific computation. See http://www.hsl.rl.ac.uk/".
73 3.1 The Software is supplied as is, including any faults.
75 3.2 To the maximum extent permitted by the law, STFC excludes all warranties
76 conditions or other terms that may be implied into this Agreement whether
77 by law, statute or otherwise.
79 3.3 STFC gives no condition, warranty or other term whatsoever, either
80 express or implied including, without limitation, any condition, warranty
81 or other term as to the condition of the Software, that the Software is
82 free from any Harmful Element, or as to satisfactory quality, fitness for
83 a particular purpose, non-infringement, or use of reasonable care and
84 skill.
86 3.4 To the extent permitted under applicable law, STFC shall not be liable in
87 contract, tort or otherwise for any loss or damage, howsoever arising in
88 connection with the Software. Accordingly, the Licensee acknowledges and
89 accepts that it uses the Software at its own risk.
91 3.5 STFC shall not be liable for any indirect, special, or consequential
92 damages, or loss of profit, whether such damages or losses are known,
93 foreseen, foreseeable or unforeseen. Nothing in this Agreement shall
94 limit STFC's liability for negligently caused death or personal injury
95 or fraud.
99 4.1 In consideration of the disclosure by STFC to the Licensee of the
100 Software, the Licensee undertakes that it will respect and preserve the
101 confidentiality of the Software for a period of five years after the date
102 of such disclosure (subject to clause 4.2 below).
104 4.2 The obligations contained in this clause 4 shall not apply, or shall
105 cease to apply, to such part of the Software as the Licensee can show to
106 the reasonable satisfaction of STFC:
108 4.2.1 has become public knowledge other than through the fault of the Licensee;
109 or
111 4.2.2 was already known to the Licensee prior to disclosure to it by STFC; or
113 4.2.3 has been received from a third party who neither acquired it in
114 confidence from STFC, nor owed STFC a duty of confidence in respect of it.
118 5.1 The Software is proprietary to STFC. The Licensee acknowledges that any
119 disclosure pursuant to this agreement shall not confer on the Licensee
120 any Intellectual Property or other rights in relation to the Software.
122 5.2 Ownership of all complete or partial copies of the Software shall at all
123 times remain with STFC. The Licensee agrees to mark any copies of the
124 Software which it may make in any tangible medium with a notice that such
125 copy belongs to STFC.
129 6.1 The Licensee may terminate the Agreement at any time by giving at least
130 30 days' prior written notice to STFC.
132 6.2 The Agreement shall terminate automatically in the event that the
133 Licensee no longer fulfils the requirements of clause 2.1.1.
135 6.3 STFC may terminate the Agreement immediately on giving notice in writing
136 to the Licensee if the Licensee commits any serious breach of any term of
137 this Agreement and fails (in the case of a breach capable of being
138 remedied), within 10 days after the receipt of a request in writing from
139 the STFC to do so, to remedy the breach (such request to contain a
140 warning of the STFC's intention to terminate).
142 6.4 Immediately upon the termination of the Agreement the Licensee shall
143 destroy the Software and all copies of the whole or any part thereof and
144 certify in writing to STFC that they have been destroyed.
146 6.5 Any termination of this Agreement (howsoever occasioned) shall not affect
147 any accrued rights or liabilities of either party nor shall it affect the
148 coming into force or the continuance in force of any provision in this
149 Agreement which is expressly or by implication intended to come into or
150 continue in force on or after such termination.
154 7.1 STFC may assign any of its rights and obligations under this Agreement,
155 upon written notice, to any affiliated organization or to a statutory
156 successor. Any assignment shall be subject to the assignee undertaking to
157 observe the terms and conditions of this Agreement.
159 7.2 The Licensee may not assign, transfer, charge, sublicense or otherwise
160 deal in or dispose of in whole or in part any of its rights or
161 obligations under this Agreement without the prior written consent of
162 STFC (such consent not to be unreasonably withheld or delayed).
164 7.3 Nothing in this Agreement will constitute or will be deemed to constitute
165 between the parties a partnership, association, joint venture or other
166 co-operative entity, or constitute the relationship of principal and
167 agent.
169 7.4 Neither party shall have any liability under or be deemed in breach of
170 this Agreement for any delays or failures in performance of this
171 Agreement which result from circumstances beyond the reasonable control
172 of that party including, without limitation, fire, explosion, flood,
173 tempest, unusually adverse weather conditions, failure or shortage of
174 power supplies, war, hostilities, riot or acts of terrorism. The party
175 affected by such circumstances shall promptly notify the other party in
176 writing when such circumstances cause a delay or failure in performance
177 and when they cease to do so. If circumstances continue for a continuous
178 period of one (1) month, either party may terminate this Agreement by
179 written notice to the other party.
181 7.5 No forbearance, delay or indulgence by either party in enforcing the
182 provisions of this Agreement shall prejudice or restrict the rights of
183 that party nor shall any waiver of its rights operate as a waiver of any
184 subsequent breach and no right, power or remedy herein conferred upon or
185 reserved for either party is exclusive of any other right, power or
186 remedy available to that party and each such right, power or remedy shall
187 be cumulative.
189 7.6 This Agreement supersedes all prior agreements, arrangements and
190 understandings between the parties and constitutes the entire agreement
191 between the parties relating to the subject matter hereof (save that
192 neither party seeks to exclude liability for any fraudulent
193 pre-contractual misrepresentation upon which the other party can be shown
194 to have relied). The Licensee hereby warrants to STFC that the Licensee
195 has not been induced to enter into this Agreement by any prior
196 representations or warranties, whether oral or in writing, except as
197 specifically contained in this Agreement and the Licensee hereby
198 irrevocably and unconditionally waives any right it may have to claim
199 damages for any misrepresentation not contained in this Agreement or for
200 breach of any warranty not contained herein (unless such
201 misrepresentation or warranty was made fraudulently and was relied upon
202 by the Licensee) and/or to rescind this Agreement. No addition to or
203 modification of any provision of this Agreement shall be binding upon the
204 parties unless made by a written instrument signed by a duly authorised
205 representative of each of the parties.
207 7.7 Notwithstanding that the whole or any part of any provision of this
208 Agreement may prove to be illegal or unenforceable the other provisions
209 of this Agreement and the remainder of the provision in question shall
210 remain in full force and effect.
212 7.8 The parties confirm their intent not to confer any rights on any third
213 parties by virtue of this Agreement and accordingly the Contracts (Rights
214 of Third parties) Act 1999 shall not apply to this Agreement.
216 7.9 This agreement shall be interpreted and construed in accordance with the
217 laws of England and Wales. The English Courts will have exclusive
218 jurisdiction to deal with any dispute which has arisen or may arise out
219 of or in connection with this Agreement, however STFC may enforce the
220 Licensee's obligation of confidence in the courts of any jurisdiction
221 having competence to issue an injunction directly enforceable against
222 the Licensee.

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