These Terms govern the use of Examiner on a trial basis. These Terms shall become effective on the Customer clicking to indicate its acceptance of these Terms on Cyacomb’s trial portal. If you are accepting on behalf of an organisation, you warrant that you have read and understand these Terms, have the full authority to bind the relevant organisation to these Terms and you agree on behalf of the organisation you represent to these Terms.
Particular attention is drawn to the liability provisions in Clause 2 (Licence).
The definitions in this clause apply in these Terms.
Customer: the organisation/entity downloading and/or using Examiner for Evaluation;
Cyacomb: CYACOMB LIMITED, incorporated and registered in Scotland with company number SC538756 whose registered office is at 50 Lothian Road, Festival Square, Edinburgh, Scotland, EH3 9WJ;
Examiner: the Examiner software licensed by Cyacomb under these Terms;
Evaluation: evaluation of Examiner by the Customer for use in the Customer’s business and/or in the Customer’s activities;
- Information: information (in any form/format) disclosed by, or on behalf of, Cyacomb and/or obtained by the Customer relating to Cyacomb and/or Examiner;
- System: the Customer’s computer system; and
- Trial Period: a period of twenty-one (21) days after acceptance of these Terms by the Customer.
- Cyacomb hereby grants the Customer a personal, non-transferable, non-sublicensable, non-exclusive licence to use Examiner on the System during the Trial Period solely for the purposes of Evaluation. The Customer acknowledges and agrees that Examiner will, automatically "time out" (that is to say, cease to operate) at the end of the Trial Period if the Customer has not at that time accepted a full licence.
- The Customer agrees and undertakes that it shall not:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Examiner in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Examiner; or
- access all or any part of Examiner in order to build a product or service which competes with Examiner; or
- use Examiner in connection with a service bureau or similar activity whereby the Customer uses Examiner for the benefit of a third party who has not purchased a subscription.
- This licence:
- terminates automatically at the end of Trial Period or upon acceptance by the Customer of a full licence, whichever happens earlier; and
- may be terminated at any time with immediate effect by Cyacomb giving written notice if the Customer is in breach of these Terms and upon termination not followed by a full licence, the Customer shall promptly delete all copies of all or any part of Examiner and/or the Information resident in the System or elsewhere and the Customer’s access to Examiner will cease. To the extent that it is not possible to delete copies of Examiner form the Customer’s system backups, the Customer shall ensure that Examiner is put beyond use and will not be restored with the back-up.
- Save for death and personal injury caused by Cyacomb's negligence, Cyacomb’s liability for fraud or fraudulent misrepresentation and any other liability which Cyacomb is not permitted to exclude under applicable law, Cyacomb shall have no liability of any kind in any circumstances whatever to the Customer in respect of Examiner, the Information or the Evaluation greater than the limit set out in clause 6. In particular, Cyacomb shall have no liability for any data loss or corruption greater than that limit and the Customer agrees that it has sole responsibility for protecting its data during evaluation of Examiner.
- Save as set out explicitly in these Terms, no representations, conditions, warranties or other terms of any kind are given in respect of Examiner or the Information, and all statutory warranties and conditions are excluded to the fullest extent possible.
- In the event that Cyacomb shall be found liable to the Customer under these Terms, the sums payable to the Customer in respect of such liability shall not in any circumstances exceed £1000.
- In consideration of the disclosure by or on behalf of Cyacomb to the Customer of Examiner and the Information for the purpose of Evaluation, the Customer undertakes that it will respect and preserve the confidentiality of Examiner and the Information (subject to clause 3.3 below). The Customer shall not without the prior written consent of Cyacomb:
- communicate or otherwise make available the Information or Examiner to any third party; or
- use the Information or Examiner for any commercial, industrial or other purpose other than Evaluation; or
- copy, adapt, or otherwise reproduce the Information or Examiner save as strictly necessary for Evaluation and expressly permitted by these Terms.
- The Customer may disclose Examiner and Information or any part thereof, with the prior consent of Cyacomb, to any employee of the Customer who needs access to Examiner and the Information in connection with the Evaluation. In such an event the Customer shall ensure, before such disclosure, that the employee in question is made aware of the confidential nature of Examiner and Information and that they are bound by conditions of secrecy no less strict than those set out here. The Customer agrees to monitor the use of Examiner and Information by these employees and to enforce their obligations of confidence at the request of Cyacomb.
- The obligations contained in this clause 3 shall not apply, or shall cease to apply, to such part of the Information as the Customer can show to the reasonable satisfaction of Cyacomb:
- has become public knowledge other than through the fault of the Customer or an employee of the Customer to whom it has been disclosed in accordance with clause 2 above; or
- was already known to the Customer prior to disclosure to it by Cyacomb; or
- has been received from a third party who neither acquired it in confidence from Cyacomb, nor owed Cyacomb a duty of confidence in respect of it.
- If the Customer decides not to accept a full licence of Examiner, or otherwise at any time at the request of Cyacomb, the Customer shall delete copies of all or any part of Examiner and Information, together with all analyses, studies and other materials produced by the Customer which contain, or could reveal, all or any part of the Information or Examiner, and any summaries (in whatever form) prepared by the Customer of oral Information disclosed by Cyacomb. To the extent that it is not possible to delete copies of Examiner form the Customer’s system backups, the Customer shall ensure that Examiner is put beyond use and will not be restored with the back-up.
- Property Rights
- Cyacomb owns Examiner, Information and all related documentation. The Customer acknowledges that any disclosure pursuant to these Terms shall not confer on the Customer any intellectual property or other rights in relation to Examiner or the Information other than its right to use under clause 1.
- Ownership of all complete or partial copies of Examiner and related documentation shall at all times remain with Cyacomb.
- If a third party notifies the Customer of any claim that the use of Examiner or Information infringes any right of a third party, the Customer agrees to immediately notify Cyacomb. If any such claim is made, the Customer shall, at Cyacomb's request, immediately cease use of Examiner. If Cyacomb is unable to allow the Customer to continue evaluation of Examiner, Cyacomb may terminate pursuant to clause 3.
- No variation of these Terms shall be effective unless it is in writing and signed by or on behalf of both parties.
- "Writing" or "written" excludes faxes but not email.
- These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
- The courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).