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Licence Agreement
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING THE TALKING MATS SERVICE
This licence agreement (“Licence”) is a legal agreement between you (“Licensee” or “you”) and Talking Mats Ltd., a company incorporated in Scotland (Company No. SC399879) with its registered office at 2, Beta Centre, Stirling University Innovation Park, Stirling, FK9 4NF, Scotland (“Licensor” or “we”) for this digital and/or physical Talking Mats service (“Service”), which includes the Talking Mats applications (provided as Apps or via internet browser), the associated media, printed materials and online/ electronic documentation (“Documentation”).
IMPORTANT: PLEASE READ CAREFULLY BEFORE PURCHASING, INSTALLING OR ACCESSING THE SERVICE. BY CLICKING THE “ACCEPT” BUTTON FOR THE TALKING MATS TERMS AND CONDITIONS, WHICH ARE LINKED TO THIS END USER LICENCE AGREEMENT (EULA), YOU ARE INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND CONSENTING TO BE BOUND BY THEM.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “REJECT” OR “CANCEL” BUTTON AND DO NOT DOWNLOAD, ACTIVATE OR USE THE SERVICE.
BY USING THIS SERVICE YOU AGREE TO THE TERMS OF THIS LICENCE, WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SERVICE TO YOU AND YOU MUST DISCONTINUE USE OF THE SERVICE NOW AND ACCORDINGLY NOT PROCEED ANY FURTHER. YOU MUST DELETE ANY USERNAMES OR PASSWORDS THAT YOU HAVE ACQUIRED OR MADE. IF YOU CANCEL YOUR SUBSCRIPTION AND COMPLY WITH THE PROCEDURE SET OUT IN THE PREVIOUS SENTENCE YOU WILL RECEIVE A FULL REFUND. IF YOU PURCHASED THIS SERVICE FROM AN AUTHORISED THIRD PARTY RETAILER, PLEASE NOTE THAT THE RETAILER HAS THE RIGHT TO ENTER INTO THIS LICENCE ON OUR BEHALF.
1. Acknowledgements
1.1 In this Licence unless otherwise expressly stated:-
1.1.1. references to Clauses are to clauses of this Licence;
1.1.2. references to the singular include reference to the plural and vice versa;
1.1.3. headings are inserted for convenience only and shall not affect the construction or interpretation of this Licence;
1.1.4. references to a Party or the Parties are to a party or the parties to this Licence; and
1.1.5. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression are illustrative and do not limit the sense of the words preceding those terms and such terms shall be deemed to be followed by the words “without limitation”.
1.2. We may change these terms at any time by sending you an email with details of the change or notifying you of a change when you next start the Service. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Service.
1.3. From time to time updates to the Service may be issued through the App stores or via the Talking Mats website and such updates will be licensed subject to the terms and conditions of this Agreement. It will be your responsibility to download any available updates for your use. For the avoidance of any doubt, however, we are not obliged to provide any updates or upgrades of the Software and we reserve the right to apply a charge for updates from time to time. Depending on the update, you may not be able to use the Service until you have downloaded or streamed the latest version of the Service and accepted any new terms.
1.4. You will be assumed to have obtained permission from the owners of any desktop computer, mobile telephone or handheld devices that are controlled, but not owned, by you and described in condition 2.2 (“Devices”) and to download or stream a copy of the Service onto the Devices. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this Licence for the use of the Service on or in relation to any Device, whether or not it is owned by you.
1.5. The following Services will be governed by the following terms of use and subject to the following privacy policies, incorporated into this Licence by reference and set out at the following web addresses respectively:
| Service | Web address of terms of use | Web address of privacy policy |
| Talking Mats Digital applications: Talking Mats Taster (free) and Talking Mats Lite (paid) licensed apps and Talking Mats Pro monthly or annual paid subscriptions.Talking Mats Original single payment paid licence | www.talkingmats.com | www.talkingmats.com/privacy-policy |
1.6. The Service may contain links to other independent third-party websites (“Third-party Sites”). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
1.7. No additional support services will be made available by us in relation to the Service. You may request training for the Service from us. Any training we agree to provide is entirely at our discretion and will be subject to additional fees in terms of a separate agreement.
2. Grant and scope of licence
2.1. In consideration of you agreeing to abide by the terms of this Licence and subject to: (i) any limits on duration agreed between the Licensor and the Licensee; and/ or (ii) payment by the Licensee of any applicable licence fees and/or subscription payments, the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the Service and the Documentation on the terms of this Licence.
2.2. You may:
2.2.1. if you are an individual end user, access or download/install and use the Service for your private purposes only onto an unlimited number of Devices owned or controlled by you, and to view, use and display the App on the Devices for your personal purposes only; and
2.2.2 if you have a multi-user license use the Service for the number of concurrent users agreed between you and us.
2.3. You may use any Documentation in support of the use permitted under Clause 2.1 and make one copy of the Documentation as is reasonably necessary for its lawful use.
3. Licensee’s undertakings
Except as expressly set out in this Licence or as permitted by any local law, you undertake:
3.1. not to use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Licence, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system;
3.2. not to infringe our intellectual property rights or those of any third party in relation to your use of the Service including the submission and copying of any material (to the extent that such use is not licensed by this Licence);
3.3. not to transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Service;
3.4. not to use the Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
3.5. not to collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
3.6. not to copy the Service or Documentation except where such copying is incidental to normal use of the Service or where it is necessary for the purpose of back-up or operational security;
3.7. not to sell, rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Service or Documentation;
3.8. save as expressly permitted by Clause 3.9, not to make alterations to, or modifications of, the whole or any part of the Service nor permit the Service or any part of it to be combined with, or become incorporated in, any other programs.
3.9. not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Service nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter- operability of the Service with another program, and provided that the information obtained by you during such activities:
3.9.1. is used only for the purpose of achieving inter-operability of the Service with another program;
3.9.2. is not disclosed or communicated without the Licensor’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
3.9.3. is not used to create any service or program which is substantially similar to the Service;
3.10. to keep all usernames and passwords for the Service secure and to maintain accurate and up-to-date records;
3.11. (in the event that the Licensee is an organisation) to supervise and control use of the Service and ensure that the Service is used by your employees and representatives in accordance with the terms of this Licence;
3.12. to include the copyright notice of the Licensor on all entire and partial copies of the Service in any form;
3.13. not to provide, or otherwise make available, the Service in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than your employees without prior written consent from the Licensor; and
3.14 in your use of the Service, to comply in all respects with the requirements of the Data Protection Act 1998 (and any equivalent legislation relating to privacy and data protection in any jurisdiction to which you or the individuals whose personal data and other information you are processing are subject), and to indemnify the Licensor fully and keep the Licensor fully indemnified against any and all loss, claims, costs, expenses, penalties, fines and interest incurred by the Licensor as a consequence of your breach of this Clause.
4. Intellectual property rights
4.1. You acknowledge that all intellectual property rights in and to the Service and the Documentation throughout the world belong to the Licensor or its licensors, that rights in the Service are licensed (not sold) to you, and that you have no rights in, or to, the Service or the Documentation other than the right to use them in accordance with the terms of this Licence.
4.2. You acknowledge that you have no right to have access to the Service in source code form or in unlocked coding or with comments.
5. Warranty
5.1. The Licensor warrants that:
5.1.1. if a defect in the Service occurs during the period of license and/or subscription;
5.1.2. during the period of license and/or subscription, the Service will, when properly used, perform substantially in accordance with the functions described in the Documentation, and the Documentation correctly describes the operation of the Service in all material respects.
5.2. You acknowledge that the Service has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Service as described in the Documentation meet your requirements.
5.3. You acknowledge that the Service may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
5.4. Subject to your compliance with the terms of this Licence, if, within the Subscription Period, you notify the Licensor in writing of any defect or fault in the Service in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Service or used it in contravention of the terms of this Licence, the Licensor will, at its sole option, repair or replace the Service, provided that you make available all information that may be necessary to assist the Licensor in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
6. Licensor’s liability
6.1. Nothing in this Licence shall exclude or in any way limit the Licensor’s liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
6.2. Subject to Clause 6.1, the Licensor shall not be liable under or in connection with this Licence or any collateral contract for:
6.2.1. loss of income;
6.2.2. loss of business profits or contracts;
6.2.3. business interruption;
6.2.4. loss of the use of money or anticipated savings;
6.2.5. loss of information;
6.2.6. loss of opportunity, goodwill or reputation;
6.2.7. loss of, damage to or corruption of data; or
6.2.8. any indirect or consequential loss or damage of any kind howsoever arising and whether caused by delict (including negligence), breach of contract or otherwise; provided that this Clause 6.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of Clause 5 or any other claims for direct financial loss that are not excluded by any of categories (a) to (h) inclusive of this Clause 6.2.
6.3. Subject to Clauses 6.1 and 6.2, the Licensor’s maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the greater of (a) £1 and (b) ONE HUNDRED PERCENT (100%) of the licence fee and/or subscription.
6.4. Subject to Clause 6.1, 6.2 and 6.3, the Licensor’s liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
6.5. This Licence sets out the full extent of the Licensor’s obligations and liabilities in respect of the supply of the Service and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Service and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
7. Termination
7.1. The Licensor may terminate this Licence immediately by written notice to you if:
7.1.1. you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so; or
7.1.2. a petition for your sequestration has been presented to the court or you have granted a trust deed for the benefit of your creditors; or
7.1.3. the Licensee (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or if documents are filed with the court for the appointment of an administrator or a notice is given of intention to appoint an administrator by the Licensee or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986).
7.2. Upon termination for any reason:
7.2.1. all rights granted to you under this Licence shall cease;
7.2.2. you must cease all activities authorised by this Licence;
7.2.3. you must immediately pay to the Licensor any sums due to the Licensor under this Licence; and
7.2.4. you must immediately delete or remove the Service from all Devices in your possession, custody or control all copies of the Service then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.
7.2.5 You may terminate this License by giving a minimum of 28 days notice. The Licensor will refund any prepaid subscription fees to you on a pro rata basis.
8. Transfer of rights and obligations
8.1. This Licence is binding on you and us and on our respective successors and assignees.
8.2. You may not transfer, sub-license, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
8.3. The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of its rights or obligations arising under it, at any time during the term of the Licence.
9. Events outside the Licensor’s control
9.1. The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Licence that is caused by an event outside its reasonable control (“Force Majeure Event”).
9.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular the following:
9.2.1. strikes, lock-outs or other industrial action;
9.2.2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
9.2.3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
9.2.4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
9.2.5. impossibility of the use of public or private telecommunications networks; and
9.2.6. the acts, decrees, legislation, regulations or restrictions of any government or other competent authority.
9.3. The Licensor’s performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and it will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
10. Communication between us
10.1. If you wish to contact us in writing, or if any condition in this Licence requires you to give us notice in writing, you can send this to us by e-mail or by prepaid post to 2, Beta Centre, Stirling University Innovation Park, Stirling, FK9 4NF, Scotland and info@talkingmats.com. We will confirm receipt of this by contacting you in writing, normally by e-mail.
10.2. If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your request for the App.
11. Waiver
11.1. If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if the Licensor fails to exercise any of the rights or remedies to which it entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
11.2. A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
11.3. No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
12. Severability
Should any provision of this Agreement be held to be illegal, invalid or unenforceable in any respect by any judicial or other competent authority under the law of any jurisdiction:
12.1. if by substituting a shorter time period or more restricted application of the provision, it would be valid and enforceable, such shorter time period or more restricted application shall be substituted.
12.2. if Clause 12.1 is not applicable:
12.2.1. such provision shall, so far as it is illegal, invalid or unenforceable in any jurisdiction, be given no effect by the Parties and shall be deemed not to be included in this Agreement in that jurisdiction;
12.2.2. the other provisions of this Agreement shall be binding on the Parties in that jurisdiction as if such provision were not included herein;
12.2.3. the legality, validity and enforceability of the provision in any other jurisdiction shall not be affected or impaired; and
12.2.4. the Parties shall negotiate in good faith to agree an alternative provision in terms which as closely as possible achieve the intention of the Parties in the original provision, do not substantially impair the Parties’ original interests and do not render such provisions invalid or unenforceable.
13. Entire Agreement
13.1. This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Service and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
13.2. We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
13.3. Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other Party’s only remedy shall be for breach of contract as provided in this Licence.
14. Third Party Beneficiary
For Services made available through the Apple App Store, you must acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary thereof.
15. Law and jurisdiction
This Licence is governed by Scottish law. Any dispute arising from, or related to, any term of this Licence (including any non-contractual disputes) shall be subject to the non-exclusive jurisdiction of the courts of Scotland.
