In this Agreement the following expressions have the following meanings:
means any virus, worm, time bomb, time lock, drop dead
device, trap and access code or anything else that
might disrupt, disable, harm or impede the operation of
any information system, or that might corrupt, damage,
destroy or render inaccessible any software, data or
file, or that may allow any unauthorised person to gain
access to, any information system or any software, data
or file on it;
means patents, trade marks, service marks, registered
designs, copyrights, database rights, design rights,
know-how, confidential information, applications for
any of the above, trade secrets and any similar right
recognised from time to time in any jurisdiction,
together with all rights of action in relation to the
infringement of any of the above;
means the software and any accompanying documentation
downloaded by the Licensee; and
means the Science and Technology Facilities Council,
one of whose principal offices is at Rutherford
Appleton Laboratory, Harwell Oxford, Didcot, OX11 0QX.
2.1 In consideration of the confidentiality undertakings given by the Licensee
pursuant to Clause 4, STFC grants the Licensee, for the duration of this
agreement, an indefinite, non-exclusive, non-transferable licence to use
the Software solely for personal use on the terms and conditions of this
Agreement provided that:
2.1.1 the Licensee must be employed by a non-profit educational, academic
or research institute;
2.1.2 the Licensee may not distribute any of the Software to any third
party, or share its use with any third party (regardless of whether
such third party is from the same institution), and the Licensee
may not sub-license the use of any of the Software;
2.1.3 the Licensee may not use the Software for any commercial purposes;
2.1.4 the Licensee may not copy any of the Software except for the
purposes of making a reasonable number of back-up copies, nor may
the Licensee modify the Software or incorporate or imbed it into
any other software products, except to optimise its performance for
the Licensee's use on a particular platform.
2.2 The licence granted in clause 2.1 relates only to the release of the
Software at the date of this Agreement. The Licensee must acquire a new
licence from STFC to use any future release of the Software.
2.3 The Licensee will not tamper with or remove any copyright or other
proprietary notice or any disclaimer that appears on or in any part of
the Software and will reproduce the same in all copies of the Software.
2.4 In any published work produced by the Licensee which includes results
achieved by using the Software, the Licensee shall acknowledge that the
Software was used in producing the results contained in such publication
by including the following citation: "HSL, a collection of Fortran codes
for large-scale scientific computation. See http://www.hsl.rl.ac.uk/".
3 WARRANTIES AND LIABILITY
3.1 The Software is supplied as is, including any faults.
3.2 To the maximum extent permitted by the law, STFC excludes all warranties
conditions or other terms that may be implied into this Agreement whether
by law, statute or otherwise.
3.3 STFC gives no condition, warranty or other term whatsoever, either
express or implied including, without limitation, any condition, warranty
or other term as to the condition of the Software, that the Software is
free from any Harmful Element, or as to satisfactory quality, fitness for
a particular purpose, non-infringement, or use of reasonable care and
3.4 To the extent permitted under applicable law, STFC shall not be liable in
contract, tort or otherwise for any loss or damage, howsoever arising in
connection with the Software. Accordingly, the Licensee acknowledges and
accepts that it uses the Software at its own risk.
3.5 STFC shall not be liable for any indirect, special, or consequential
damages, or loss of profit, whether such damages or losses are known,
foreseen, foreseeable or unforeseen. Nothing in this Agreement shall
limit STFC's liability for negligently caused death or personal injury
4 NON-DISCLOSURE AGREEMENT
4.1 In consideration of the disclosure by STFC to the Licensee of the
Software, the Licensee undertakes that it will respect and preserve the
confidentiality of the Software for a period of five years after the date
of such disclosure (subject to clause 4.2 below).
4.2 The obligations contained in this clause 4 shall not apply, or shall
cease to apply, to such part of the Software as the Licensee can show to
the reasonable satisfaction of STFC:
4.2.1 has become public knowledge other than through the fault of the Licensee;
4.2.2 was already known to the Licensee prior to disclosure to it by STFC; or
4.2.3 has been received from a third party who neither acquired it in
confidence from STFC, nor owed STFC a duty of confidence in respect of it.
5 PROPERTY RIGHTS
5.1 The Software is proprietary to STFC. The Licensee acknowledges that any
disclosure pursuant to this agreement shall not confer on the Licensee
any Intellectual Property or other rights in relation to the Software.
5.2 Ownership of all complete or partial copies of the Software shall at all
times remain with STFC. The Licensee agrees to mark any copies of the
Software which it may make in any tangible medium with a notice that such
copy belongs to STFC.
6.1 The Licensee may terminate the Agreement at any time by giving at least
30 days' prior written notice to STFC.
6.2 The Agreement shall terminate automatically in the event that the
Licensee no longer fulfils the requirements of clause 2.1.1.
6.3 STFC may terminate the Agreement immediately on giving notice in writing
to the Licensee if the Licensee commits any serious breach of any term of
this Agreement and fails (in the case of a breach capable of being
remedied), within 10 days after the receipt of a request in writing from
the STFC to do so, to remedy the breach (such request to contain a
warning of the STFC's intention to terminate).
6.4 Immediately upon the termination of the Agreement the Licensee shall
destroy the Software and all copies of the whole or any part thereof and
certify in writing to STFC that they have been destroyed.
6.5 Any termination of this Agreement (howsoever occasioned) shall not affect
any accrued rights or liabilities of either party nor shall it affect the
coming into force or the continuance in force of any provision in this
Agreement which is expressly or by implication intended to come into or
continue in force on or after such termination.
7.1 STFC may assign any of its rights and obligations under this Agreement,
upon written notice, to any affiliated organization or to a statutory
successor. Any assignment shall be subject to the assignee undertaking to
observe the terms and conditions of this Agreement.
7.2 The Licensee may not assign, transfer, charge, sublicense or otherwise
deal in or dispose of in whole or in part any of its rights or
obligations under this Agreement without the prior written consent of
STFC (such consent not to be unreasonably withheld or delayed).
7.3 Nothing in this Agreement will constitute or will be deemed to constitute
between the parties a partnership, association, joint venture or other
co-operative entity, or constitute the relationship of principal and
7.4 Neither party shall have any liability under or be deemed in breach of
this Agreement for any delays or failures in performance of this
Agreement which result from circumstances beyond the reasonable control
of that party including, without limitation, fire, explosion, flood,
tempest, unusually adverse weather conditions, failure or shortage of
power supplies, war, hostilities, riot or acts of terrorism ("Force
Majeure"). The party affected by such circumstances shall promptly notify
the other party in writing when such circumstances cause a delay or
failure in performance and when they cease to do so. If circumstances
continue for a continuous period of one (1) month, either party may
terminate this Agreement by written notice to the other party.
7.5 No forbearance, delay or indulgence by either party in enforcing the
provisions of this Agreement shall prejudice or restrict the rights of
that party nor shall any waiver of its rights operate as a waiver of any
subsequent breach and no right, power or remedy herein conferred upon or
reserved for either party is exclusive of any other right, power or
remedy available to that party and each such right, power or remedy shall
7.6 This Agreement supersedes all prior agreements, arrangements and
understandings between the parties and constitutes the entire agreement
between the parties relating to the subject matter hereof (save that
neither party seeks to exclude liability for any fraudulent
pre-contractual misrepresentation upon which the other party can be shown
to have relied). The Licensee hereby warrants to STFC that the Licensee
has not been induced to enter into this Agreement by any prior
representations or warranties, whether oral or in writing, except as
specifically contained in this Agreement and the Licensee hereby
irrevocably and unconditionally waives any right it may have to claim
damages for any misrepresentation not contained in this Agreement or for
breach of any warranty not contained herein (unless such
misrepresentation or warranty was made fraudulently and was relied upon
by the Licensee) and/or to rescind this Agreement. No addition to or
modification of any provision of this Agreement shall be binding upon the
parties unless made by a written instrument signed by a duly authorised
representative of each of the parties.
7.7 Notwithstanding that the whole or any part of any provision of this
Agreement may prove to be illegal or unenforceable the other provisions
of this Agreement and the remainder of the provision in question shall
remain in full force and effect.
7.8 The parties confirm their intent not to confer any rights on any third
parties by virtue of this Agreement and accordingly the Contracts (Rights
of Third parties) Act 1999 shall not apply to this Agreement.
7.9 This agreement shall be interpreted and construed in accordance with the
laws of England and Wales. However, STFC may enforce the Licensee's
obligation of confidence in the courts of any jurisdiction having
competence to issue an injunction directly enforceable against the