ATTENTION: YOU MUST READ THIS NOTICE BEFORE INSTALLING THE SOFTWARE.
This agreement sets out the terms by which e-Safety 1st Limited of 50 Oakfield Road, Southgate, London N14 6LX ("E-SAFETY 1st" or "us") will allow you to download and use the Card-Guard software suitable for end-users (the "Software"), and to use e-Safety 1st's services. Date of this agreement:- 1st June 2000.
CLICK ON "YES" IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE SOFTWARE WILL THEN BE INSTALLED.
1. Ownership and Licence. This is a licence agreement and not an agreement for sale. E-SAFETY 1st continues to own all copyright and other intellectual property rights in the Software. E-SAFETY 1st retains all rights not expressly granted to you in this Agreement.
2. Permitted Uses. You are granted the following non-exclusive rights in respect of the Software:
(a) Right to Install and Use. You may install and use the Software on the hard disk drive of any single computer that you own. Each further copy of the Software installed on further computers must be licensed separately in accordance with the terms of this Agreement, though you may remove the Software from the original computer and re-install it on a new one without entering into a new agreement.
Network Use: If the single computer on which you install the Software is a network server, you may use the Software on any computer attached to the network, provided that only one network user can use it at any one time.
(b) Right to Copy. You may make one copy of the Software for back-up and archival purposes, provided that the original and the copy are both kept in your possession, and that your installation and use of the Software does not exceed that allowed in Clause 2(a) above, and provided you reproduce the E-SAFETY 1st copyright notice on each copy ("( e-Safety 1st Limited 2000. All rights reserved").
(c) No right to Transfer. The licence granted to you is personal. You may not rent, lend, transfer, lease or make available the Software to any third party (including, without limitation, any consultants, agents or representatives) without E-SAFETY 1st's prior written consent.
3. Purpose of Licence. The intended purpose of use of the Software is to provide, in conjunction with the Services (as set out at Clause 6) a detailed and reasonably reliable record of all commercial Internet transactions as specified in the E-SAFETY 1st website (www.card-guard.com - the "Website"). The Software is only intended for use by you other than in the course of business, and only when concluding transactions via the Internet with merchants who are acting in the course of business. The Software is licensed to you for the solely purposes stated in this Clause 3 and for no other purposes.
4. Prohibited Uses. You may not, without written permission from us:
(a) use, copy, modify, amend, merge, or transfer copies of the Software or documentation except as provided in this Agreement;
(b) use any back-up or archival copies of the Software (or allow anyone else to use such copies) for any purpose other than to replace the original copy in the event it is destroyed or becomes defective;
(c) sub-license, lease, lend, transfer or rent the Software;
(d) attempt to decode any Record (as defined in Clause 6.1) other than in accordance with Clause 6.3; or
(e) disassemble, decompile, reverse translate, or in any manner decode the Software for any reason. Information necessary to achieve interoperability of the Software with other independently created programs, within the meaning of Article 6 of the Directive on the Legal Protection of Computer Programs (91/250/EEC), may be available from us on request and you have no right to carry out the activity referred to above unless, following a request from you, we have failed to provide the necessary information within a reasonable time.
5. Software Warranty.
5.1 E-SAFETY 1st warrants that the Software will, on the date on which it is first downloaded from the Website, be reasonably suitable for the purpose given at Clause 3 and that it will continue to function in substantially the same way for the period of at least [one year].
5.2 E-SAFETY 1st does not warrant that the Software will be bug or error free, or that it will accurately record all the details of every single commercial internet transaction which you conclude. We have, though, taken reasonable steps to prevent the Software from becoming infected with any viruses or similar unwanted or harmful computer code.
5.3 In all other respects (save as expressly stated in this Agreement or to the extent that such exclusions are not permitted by applicable law), the Software is provided "as is" and without any warranty, condition, representation or term of any kind. Any and all warranties, conditions, representations and terms whether express or implied by statute, common law, trade usage, course of dealing or otherwise in relation to the Software or its functionality are excluded.
6. Services (the "Services").
6.1 In respect of each transaction, the Software will create an encrypted transaction record on your machine (the "Record"). You will be able to view the contents of a semi-secure display of the Record but not to edit it.
6.2 Where you conduct a transaction with a merchant who is registered with us, you will receive an order confirmation from them which will be added to the Record and further, be made available for printing.
6.3 E-SAFETY 1st will provide a Record decryption service for use in the event of a dispute in relation to any given transaction. If such a dispute occurs the Software will allow you to send us the Record together with the information which we need in order to decrypt it. The decrypted file will be sent back to you. We will also keep a copy. The charge for this service is given at Clause 6.4.
6.4 The charges for the Record decryption service are as follows:
(i) to members of a Membership Scheme (as defined in Clause 6.5), no charge will be made for the first 10 decryptions, in the case of the Card-Guard Plus membership option, and 20 decryptions in the case of the Card-Guard Gold membership option.
(ii) to all other users of the Software, the current charge as set out from time to time in the Website, which charge will be notified to you before you have incurred it.
6.5 Membership of particular schemes (each a "Membership Scheme") will be available for the extra charge specified from time to time on the Website. Membership of a Membership Scheme will entitle you to receive the additional benefits listed on the Website. In each case such benefits will constitute Services under this Agreement and will provided subject to the terms of this Agreement and to any other terms which may be provided to you at the time at which you sign up (including, without limitation, provisions as to payment or time periods during which membership will apply) which other terms will, in the event of a discrepancy, take precedence.
6.6 For the avoidance of doubt, E-SAFETY 1st does not provide, and does not represent that it provides, a consumer dispute resolution service. We will facilitate communication between both parties where this is practicable and in accordance with the terms of the agreement
7. Services Warranty. E-SAFETY 1st warrants that the Services will be performed with reasonable care and skill. Save as expressly stated in this Agreement or to the extent that such exclusions are not permitted by applicable law, any and all warranties, conditions, representations and terms whether express or implied by statute, common law, trade usage, course of dealing or otherwise in relation to the Services are excluded.
8. Limitation of Liability
(a) Subject to Clause 8(c), E-SAFETY 1st shall in no circumstances be liable for any indirect, special, incidental or consequential damages or any loss of profits or loss of income or for any losses which you sustain as a result of having used the Software or the Services in the course of a business.
(b) Subject to Clause 8(c), E-SAFETY 1st's total liability to you in relation to the Services, in relation to the supply, purported supply, non-supply or late supply of Software or in any other respect in relation to this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no event exceed the greater of:
(i) [one hundred pounds sterling]; or
(ii) the amount you originally paid for the Software or the Services; or
(iii) such other amount as may be specified in the Website as applicable in respect of your Membership Scheme.
(c) Nothing in this Agreement shall have the effect of excluding or limiting E-SAFETY 1st's liability for any fraudulent or fundamental misrepresentation or for death or personal injury caused by E-SAFETY 1st's own negligence.
9. Confidentiality: We may keep and store any information with which you have provided us when registering for our service. You may request access to this data and that it be amended or removed and we will comply with any such request within a reasonable time. Moreover, when you conduct any transaction whilst using the Software, E-Safety 1st will receive information on the date and time of the transaction, the URL of the site where the transaction occurred and your username. This last piece of information will be encrypted, and the key held in the Record. We will not, and will not be able to, decrypt this information so as to enable us to recognise you and identify you with a particular transaction unless you ask us to do so in accordance with the terms of this Agreement. All information which we keep may be made available to third parties but only in an aggregated form which does not allow you to be identified. We will not, without your consent, reveal to any third party, including other users, any information which identifiably relates to you unless compelled to do so by governmental or regulatory authority or by order of a court of competent jurisdiction. All information will be stored on our secure servers. PLEASE NOTE THAT ALTHOUGH OUR SERVERS ARE CURRENTLY LOCATED IN THE UK WE MAY DECIDE IN FUTURE TO MOVE THEM TO THE UNITED STATES. By this Agreement you consent to any such future move. Your data will be dealt with in accordance to our privacy policy.
10. Export Controls. You agree that you will not directly or indirectly transfer the Software to any country to which such transfer would be prohibited by any applicable export control laws or regulations.
11. Termination
(a) This licence and your right to use the Software automatically terminate if you:
(i) breach or fail to comply with any provisions of this Agreement; or
(ii) destroy or delete all copies of the Software in your possession; or
(iii) receive a notice from E-SAFETY 1st terminating your licence to use the Software; or
(iv) are declared bankrupt or become subject to any similar insolvency order in any other jurisdiction
(b) Upon expiry or termination of this Agreement you will destroy or delete all copies of the Software and documentation, if any, in your possession or control.
12. Miscellaneous Provisions
(a) This Agreement will be governed by and construed in accordance with English law. The English courts shall have exclusive jurisdiction over all disputes which may arise between you and E-SAFETY 1st.
(b) Except where expressly stated, this is the entire agreement between E-SAFETY 1st and you relating to the Software and the Services, and supersedes any prior oral or written communications, advertising or representations (other than fraudulent or fundamental misrepresentations) concerning the Software or the Services. You shall not have any remedy in respect of any statement made to you on which you relied on in entering into this Agreement (other than in relation to fraudulent or fundamental misrepresentations).
(c) E-Safety 1st may modify or amend the terms of this Agreement by giving you written notice of the new terms. Your use of the Software after such notice shall constitute acceptance of the new terms.
(d) The unenforceability or invalidity of any part of this Agreement will not affect the enforceability or validity of the remaining parts.
(e) Nothing in this Agreement will affect the mandatory application of your statutory rights as a consumer under the law of the country in which you are based.
(f) No person who is not a party to this Agreement shall acquire any rights under it or be entitled to benefit from it in any way.
