Software license: Wording
I've modifed a license from: http://www.marsdd.com/mars-library/software-licence-agreement-sample-template/
and would be interested in any constructive criticism on the wording. Use a Word docx if it helps. Note that disclaiming liability may not work if the software is intended to be a 'medical device'.
Copyright 2007-2015, All rights reserved.
Terms of SOFTWARE use (License):
1. Grant of License and general points
Subject to the terms and conditions of the Agreement, NSS grants the Licensee a non-exclusive, non-transferable license to use the software. The Licensee may not transfer or sub-license the software to any third party, in whole or in part, in any form, whether modified or unmodified.
This agreement is effective from the time the User (Licensee) downloads and/ or uses the software of the Licensor, ADDRESS
SOFTWARE is interactive educational software. I, the user, accept entire responsibility for any use of this software.
By opening this software you agree to the terms of the license.
SOFTWARE software is supplied on a 'per named user' basis, henceforth referred to as a user licence but remains the sole property of NSS.
To ensure accurate calculations the user should update to the latest version of the product when advised by NSS. This is because:
NSS seek to incorporate the best research into SOFTWARE.
Feed product turnover is high necessitating regular update of the feed database.
NSS aim to correct known 'bugs' as soon as possible.
If NSS suspect that a customer is abusing this software licence, on the provision of evidence via email to a named contact, NSS have the right to terminate the license agreement and any monies already paid to NSS will remain the property of NSS. Should this occur, the legal entity may apply to use the software again, but will be treated as a new user and will forgo any rights to discounts based on historic use.
If using SOFTWARE software as guidance to clinical scenarios professional standards require that the user agrees:
I am a qualified dietician, adequately experienced in nutrition support and fully accept that the results provided by SOFTWARE are provided for guidance only and will always be subject to my professional judgement if used in clinical cases.
I have referred to original papers to understand the full context of SOFTWARE results before applying them.
SOFTWARE software is an educational support tool for dieticians, not a substitute for a dietician! NSS accept no liability for mathematical error in the software. Any calculations made by the SOFTWARE software should be considered guidelines, and their use is always subject to the user's professional judgement. NSS accept no liability for any claim for damages under any circumstances relating to the use of the product.
The SOFTWARE product bases some of its calculations on data provided by third party organisations. NSS accept no liability in relation to data supplied by third parties.
NSS accept no liability for damage caused by viruses that may be transmitted in software or data provided by NSS.
2. CONSIDERATION TO NSS
Licensee shall pay the license fee to NSS when and as requested in order to use the software.
Licensee must reproduce and apply the copyright notice and proprietary notice of NSS to all archived or back-up copies of the software.
The software in any part or form is copyrighted to and remains the property of NSS.
5. PROPRIETARY RIGHTS
Licensee recognizes that NSS regards the Licensed software as its proprietary and confidential information. Licensee agrees not to provide or make available any part or form of the licensed software without prior consent of NSS. Licensee must make every reasonable effort to protect the confidentiality of the Licensed software.
The license granted shall continue unless and until terminated (see Section 7) subject to the Licensee meeting their license obligations.
NSS may terminate this Agreement if Licensee fails to meet any part of this Agreement and fails to correct such default within 10 days after written notice from NSS.
8. TERMINATION CERTIFICATE
In the event of termination, the Licensee will immediately discontinue use of the Licensed Software and within one (1) month furnish to NSS a certificate (written statement) that all copies and parts of copies of the licensed software have been destroyed. The provisions of Sections 4, 5, 8, 11, and 13 survive termination of the License Agreement.
9. MAINTENANCE SUPPORT
Licensor will provide to Licensee the following support with respect to the Software during the 1st year of this Agreement:
(i) If there is a substantial software error the Licensor shall verify and attempt to correct the error within 30 working days after the date of notification. If Licensee is not satisfied with the correction, then Licensee may terminate this Agreement, but without refund of any amount paid to Licensor or release of any amounts due Licensor at the time of termination.
(ii) The Licensee may submit questions to Licensor free of charge up to 1 hour per license.
(iii) If License desires to continue the Software support specified in this section, Licensee shall pay to Licensor the maintenance fee(s) set forth in Exhibit A.
10. DELIVERY OF LICENSED PROGRAMS
NSS shall deliver the Licensed Programs promptly after payment.
11. WARRANTY DISCLAIMER
The Licensee accepts NSS licenses and software "As is." NSS provides no warranties as to the function or use of the licensed software, whether express, implied, or statutory, including, without limitation, any implied warranties of merchantability or fitness for particular purpose. The entire risk as to the quality and performance of the licensed software is with the licensee. Licensor does not warrant that the functions contained in the licensed software will meet licensee's requirements or that the operation of the licensed software will be uninterrupted or error free.
12. PATENT AND COPYRIGHT INDEMNITY
NSS has copyright to the software with all rights reserved. NSS shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed software in any form other than the original, unmodified form provided to Licensee.
13. LIMITATION OF LIABILITY
NSS's liability to license under any provisions of this Agreement for damages finally awarded shall be limited to the amounts actually paid by the Licensee to NSS. In no event shall NSS be liable for indirect, incidental, special or consequential damages, including loss or use, loss of profits or interruption of business, however caused or on any theory of liability.
All notices in connection with this Agreement shall be in writing.
This Agreement will be binding upon the parties and their respective representatives and successors and except where this Agreement states otherwise.
If any part of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force.
17. GOVERNING LAW/FORUM
Both parties consent to UK personal and exclusive jurisdiction.
This Agreement and the licenses granted by it may not be assigned, sub-licensed, or
otherwise transferred by Licensee without the prior written consent of NSS.
19. EXPORT REGULATIONS
Licensee understands that NEAR is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Licensee warrants that it will comply in all respect with the export and re-export restrictions set forth in the export license for the Licensed Programs and all other applicable export regulations. Licensee agrees to indemnify and hold NEAR harmless from any loss, damages, liability or expenses incurred by NEAR as a result of Licensee's failure to comply with any export regulations or restrictions.
20. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties with respect to the subject matter and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters. This Agreement shall take precedence over any additional or conflicting terms, applies to both free trial or purchased products. The Licensee agrees to this license from the time of starting a free trial or requesting an 'Activation Key'.