INTERPRETATION
In these terms of use (the “Agreement”), the following terms shall have the following meanings:
1.1 “Permitted Use” means using the Scenario Sets for calculations and research for the sole purpose of you developing a better understanding of stochastic methods. Such research and calculations shall not be disclosed to a third party or used in anyway to provide services or external research or to calculate financials for external reporting.
1.2 “Scenario Sets” means the Scenario Sets that have been produced by us and made available to you, via the internet or any other means, containing all trials, no matter the date of calibration or file format and including all outputs contained within the file, as specified in the corresponding specification document.
1.3 “we”/”us”/”our” means Barrie & Hibbert Limited, incorporated in Scotland with Registered Number 157210 having its registered office at 10 Melville Street, Edinburgh, EH3 7LU; and
1.4 “you”/”your” means any recipient of the Scenario Sets (in electronic form or otherwise).
2. LICENCE
2.1. Subject to the terms and conditions of this Agreement, and in consideration of you agreeing to be bound by the terms of this Agreement, we hereby grant to you a limited, non-exclusive, non-transferable, non-sublicensable licence for you to use the Scenario Sets for the Permitted Use only.
2.2. You will ensure that any individual to whom access to the Scenario Sets is provided or permitted by you complies with the terms upon which the same are provided to you by us. You shall be responsible and liable to us for any breach of the terms of this Agreement by any person to whom you permit access to the Scenario Sets.
2.3. You shall not be entitled to:
2.3.1 disclose, distribute, redistribute, publish or make available to any third party the Scenario Sets in any form (electronic or otherwise) or format or use or exploit the same for the benefit of any third party, whether or not on a commercial basis; or
2.3.2 use the Scenario Sets otherwise than as instructed by us from time to time; or
2.3.3 alter, vary, modify, adapt or translate the Scenario Sets nor procure or permit any of these acts to be done; or
2.3.4 sublicence, rent, sell, resell or lease the Scenario Sets to any third party.
2.4 You acknowledges that all copyright, trade marks, database rights and other intellectual property or other proprietary rights of whatever nature whether future or existing, anywhere in the world subsisting in any models, computer programs, data or information provided to you by us under the terms of this Agreement (including without limitation the Scenario Sets) are and shall remain our property (or the property of our licensors).
2.5 You undertake to reproduce and include without altering, removing or obscuring the copyright notice and our proprietary legends as they appear in or on the Scenario Sets on all copies, in whole or in part, of the same made or held by you at any time.
3. CONFIDENTIAL INFORMATION
3.1 Without prejudice to your obligations under Clause 2, you undertake to treat our confidential information (including but not limited to the Scenario Sets, our software, technology, know how, techniques, models, suppliers, customers and any intellectual property rights whether or not the same is marked as confidential) as secret and confidential and not to use, copy or disclose the whole or any part of the same except to such of your directors, officers or employees who need to know it in connection with the Permitted Use. You will keep and maintain our confidential information as confidential by exercising appropriate security measures and exercising no less than the same degree of care as you use to protect your own confidential information.
3.2 The obligations contained in Clause 3.1 shall not apply to such confidential information which:-
3.2.1 is in or enters the public domain otherwise than by breach of this Agreement;
3.2.2 is received from an independent third party having the right to disclose the same;
3.2.3 is shown to have been in the possession of the other party prior to the date of receipt from the other party; or
3.2.4 is required by law to be disclosed to any court or other competent authority.
4. TERM AND TERMINATION
4.1 The licence granted under Clause 2.1 shall commence at the time you receive the Scenario Sets and shall continue until terminated in accordance with Clause 4.2.
4.2 Either party may terminate this Agreement and the licence granted to you under Clause 2 by five days written notice to the other party. We may also terminate this Agreement and the licence granted to you under Clause 2 immediately in the event of any breach of the terms of this Agreement by you.
4.3 Termination of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the continuance in force of any terms of this Agreement which are intended to continue in force following such termination, which shall include without limitation Clauses 2.5, 3, 6 and 7.
5. WARRANTY
YOU ACKNOWLEDGE AND AGREE THAT THE SCENARIO SETS AND ANY OTHER DATA AND INFORMATION PROVIDED BY US UNDER THIS AGREEMENT IS PROVIDED WITHOUT WARRANTY ON OUR PART. ALL WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE ARE HEREBY EXCLUDED BY US TO THE FULLEST EXTENT PERMITTED BY LAW.
6. LIABILITY
6.1 Neither we nor any of our officers, employees, agents and sub-contractors shall have any liability to you or any of your officers, employees, agents, sub-contractors, clients or customers arising out of or in connection with this Agreement. Nothing in this Clause 6.1 shall limit our or our officers’, employees’, agents and sub-contractors’ liability in respect of death or personal injury to any person caused by their negligence or any other liability which may not be limited or excluded at law.
6.2 Without prejudice to the generality of Clause 6.1, neither we nor any of our officers, employees, agents and sub-contractors shall be liable to you or any of your officers, employees, agents, sub-contractors, clients or customers for any loss of anticipated savings or profits, any loss of profit, loss of revenue, loss of contracts or loss of goodwill, any loss of data, loss of computer time or loss of management time or for any loss which is indirect, special, consequential or economic loss (whether or not in practice it arises as direct and natural result of a breach of this Agreement), whether or not we were notified of the likelihood of such loss arising.
7. GENERAL AND GOVERNING LAW
7.1 You shall not be entitled to assign the whole or any part of your rights or obligations under this Agreement to any third party without our prior written consent.
7.2 No forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of its rights in respect of any breach of the Agreement operate as a waiver of any subsequent breach and no right, power or remedy in the Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party, whether under the Agreement or at law, unless expressly stated otherwise.
7.3 The Agreement constitutes the entire agreement and understanding between the parties in respect of its subject matter and, with the exception of any fraudulent misrepresentations, supersedes all previous representations, agreements, understandings and undertakings in respect of the same.
7.4 All notices to be given by either party to the other under the Agreement shall be in writing and shall be validly served if sent by either (i) recorded delivery post to the address of the other party as set out above or such other address as such party may from time to time have communicated to that party in writing and if so sent shall be deemed to be served on the second business day following the date of posting or (ii) by e-mail to such address as may have been communicated by that party to the other party and if so sent shall be deemed to be served on the first business day following the day of sending.
7.5 Any term, clause or provision of the Agreement not being of a fundamental nature which is or becomes for any reason illegal, invalid or unenforceable shall be ineffective only to the extent of such illegality, invalidity or unenforceability without invalidating the remaining terms, clauses or provisions of the Agreement.
7.6 The Agreement shall be governed by and construed in accordance with the laws of Scotland and the parties hereby prorogate the exclusive jurisdiction of the courts of Scotland.
7.7 In this Agreement, references to Clauses are, unless otherwise provided, references to the relevant numbered paragraphs of this letter. Any references to the masculine gender include the feminine and the neuter genders and any references to the singular include the plural and vice versa. Headings are included in the Agreement for ease of reference only and shall not affect the interpretation of the same.”
