Terms & Conditions

 
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Terms & Conditions

BENCHMARK COMPUTER SYSTEMS LIMITED

(TRADING AS BENCHMARK SOFTWARE) (“Benchmark”)

PLEASE READ THIS CAREFULLY BEFORE YOU INSTALL THE SOFTWARE.  YOUR PARTICULAR ATTENTION IS DRAWN TO SECTIONS 5 AND 6 WHICH LIMIT BENCHMARK’S LIABILITY TO YOU IN CERTAIN CIRCUMSTANCES.

YOUR RIGHT TO USE THIS SOFTWARE PRODUCT IS SUBJECT TO THE TERMS SET OUT IN THIS LICENCE AGREEMENT. OPENING AND USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF ITS TERMS.  IF YOU DO NOT ACCEPT OR UNDERSTAND THEM, YOU SHOULD PROMPTLY CEASE USING THE SOFTWARE AND UNINSTALL IT COMPLETELY.

 

  1. Grant of Licence

1.1 You (whether a business entity or a living person) are not permitted to install or run the software product (“the Software”) supplied to you by Benchmark without the permission of Benchmark.

1.2 Unless otherwise notified by Benchmark, all and any intellectual property rights (including, but not limited to, copyright, patents, trademarks and trade secrets, whether registered or not) in the Software and in the Manuals are the exclusive property of Benchmark.  In addition, during the term of this Agreement and thereafter you shall keep confidential any confidential information which you may obtain about Benchmark and/or the Software.

1.3 Once the Software has been installed you will require a pass code to unlock it.  This may be obtained only from Benchmark’s Software Support department on 01458 444010 between 9.00 a.m. and 5.30 p.m., Monday to Friday (excluding Bank Holidays) unless otherwise notified by Benchmark.  Benchmark reserves the right to provide unlock codes to its licensees automatically via its web site at a later stage if it so wishes.

1.4 In consideration of you agreeing to the terms of this agreement (“the Agreement”), and paying the fees in accordance with Section 1.5, Benchmark grants you a non-exclusive right (“the Licence”) to install and run the Software and use the Manuals as permitted by this Agreement.  All references to the Software shall mean the object code only of the program or programs comprising the Software.  Subject to the provisions of Section 1.6(6) below the Licence is personal to you and you must not assign or transfer any interest in it or grant any right under it to any third party or seek to exercise the Licence for the benefit or on behalf of any third party without the prior consent in writing of Benchmark.

1.5 You acknowledge that, regardless of whether Benchmark makes any charge for the licence of the Software as such, unless otherwise agreed with Benchmark, permission to use the Software shall depend on you paying Benchmark an agreed fee for support and ongoing licence of the Software, such fee depending both on the Software being licensed and the agreed basis for payment (whether monthly by direct debit or annually in full), details of the support being offered being available from Benchmark on request.  In any event, you acknowledge that until Benchmark has been paid this support and licence fee, it shall have no obligation to provide you with any support whatsoever and, in addition, failure to make any payment on time gives Benchmark the right to terminate this Agreement under Section 3.2.

1.6 YOU ARE PERMITTED TO:

(1) either use the Software and Manuals on a single computer or use the Software and Manuals on a secure and internal network (providing you are licensing Software equal to the maximum number of copies in use at one time);

(2) subject to Section 1.6(1) load the Software and use it only on a single computer which is under your control;

(3) subject to Section 1.6(1) transfer the Software from one computer to another provided that the Software is installed and used on only one computer at a time, which computer shall be under your control;

(4) make a back-up copy of the Software in support of your permitted use of the Software provided that you label the back up copy with Benchmark’s copyright and trade mark notice.  Any such copy shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Software.  The making of any other copies of the whole or any part of the Software is not permitted; and

(5) use the Software for your personal use or in connection with your business or profession.  You will be in breach of this Agreement if you permit unauthorized access to, copying or use of the Software and Manuals.

1.7 YOU MAY NOT NOR PERMIT OTHERS TO:

(1) use, copy or transfer in whole or in part the Software and/or the Manuals except as permitted expressly by this Agreement;

(2) distribute, sell, rent, charge, loan, lease, assign, sub-license or otherwise deal in or encumber the Software and Manuals;

(3) alter, adapt, merge, modify, combine or translate the whole or any part of the Software or the Manuals in any way for any purpose, including, without limitation, for error correction;

(4) reverse – engineer, disassemble or decompile the Software except under any legislation implementing the EC Council Directive on the Legal Protection of Computer Programs (including without limitation Section 50B of the Copyright, Designs and Patents Act 1988) as from time to time amended, consolidated, modified, extended, re-enacted or replaced, as the case may be.  If you seek information about the meaning of  these exceptions you can contact Benchmark at 213 High Street, Street, Somerset, BA16 0NE; and

(5) remove, charge or obscure any product identification or notices of proprietary rights and restrictions on or in the Software and Manuals or attempt to do so.

 

  1. Upgrades

If you have acquired the Software to upgrade a previous version of it or a related program contained within a previous package acquired by you from Benchmark then the upgraded version is the only version you are entitled to use and (unless otherwise permitted in writing by Benchmark) you must destroy or erase all program material and related documentation, including, but without limitation, all copies, enhancements and modifications relating to the previous package.

 

  1. Term And Termination

3.1 The Licence will be for a term of 25 years, commencing on the date on which you receive the Software, unless terminated earlier.  You may terminate it at any time in writing. Benchmark may terminate this Agreement at any time on giving one month’s notice to you.

3.2 Benchmark shall also have the right to terminate the Licence immediately on notice if you fail to comply with any term of this Agreement (including any failure to pay agreed amounts for the Licence and support of the Software) or if you become bankrupt, go into liquidation, suffer or make any winding up petition, make any arrangement with your creditors, have an administrator, administrative receiver or receiver appointed over you or suffer or file any similar action in consequence of debt.

3.3 Upon expiry, surrender or other termination of the Licence for any reason you will cease to load, store, copy or use the Software immediately and, subject to the request of Benchmark, shall destroy the Software and Manuals together with all copies in any form, including, but without limitation, copies of your hard and back-up disks or shall return all such items to Benchmark forthwith.  Any use of the Software or Manuals after termination of the Licence is not permitted.

3.4 However termination may occur it shall not prejudice any right of action or remedy which may have accrued to Benchmark prior to termination.

 

  1. Limited Warranty

4.1 Subject to Section 4.3, Benchmark warrants only to you, as the original licensee, that the Software, when used properly, will comply substantially with the material functions and facilities described in the then current version of the applicable user documentation supplied for the Software.

4.2 Benchmark’s sole and entire liability and your exclusive remedy under the warranties given in this Section 4 will be, at Benchmark’s sole option, to either:

(1) repair or replace the Software which it is satisfied does not conform with the warranty; or

(2) refund the price paid for the Software and terminate the Licence.

 

  1. Exclusion of other Warranties

5.1 Insofar as permitted by law, except for the express warranties in Section 4, Benchmark does not make and you do not receive any other warranties, conditions or representations, express or implied, statutory or otherwise, and, without limitation, any implied terms of merchantability and fitness for a particular purpose are excluded, subject to Section 7.2.

5.2 Benchmark does not warrant that the operation of the Software will be either error free or uninterrupted.

5.3 It is your responsibility to ensure that the Software is suitable for your needs and the entire risk as to the performance and results of the Software and Manuals is assumed by you.

5.4 You acknowledge that the complexity of the Software may expose weaknesses in your existing hardware and/or software and that these weaknesses may manifest themselves as apparent failures in the Software. It is your sole responsibility to remedy any such weaknesses and Benchmark accepts no responsibility in relation thereto.

5.5 No Benchmark employee is authorized to make any modification or addition to the warranties and remedies set forth herein.

 

  1. Disclaimer

6.1 In no event will Benchmark be liable for any direct, consequential, incidental, or special damage or loss of any kind (including without limitation loss of profits, loss of contracts, anticipated savings, lost business opportunity or goodwill, business interruptions, loss of or corruption to data) however caused and whether arising under contract, tort, including, but not limited to, negligence, or otherwise even if Benchmark is aware of the possibility of such damages or for any claim by you or any third party.

6.2 If any exclusion, disclaimer or other provision contained in this Agreement is held invalid for any reason and Benchmark becomes liable for loss of damage that could otherwise be limited, such liability, whether in contract, negligence or otherwise, will not exceed the amount actually paid by you for the Software and/or its support.

6.3 Benchmark does not exclude or limit liability for death or personal injury resulting from the negligence of Benchmark and its employees.

6.4 You acknowledge that the allocation of risk in this Agreement reflects the price you pay for the Software and its support and also the fact that it is not within Benchmark’s control how and for what purposes the Software will be used by you.

 

  1. General

7.1 This Agreement, and any separate support agreement agreed between you and Benchmark relating to the Software, is the entire agreement between you and Benchmark and supersedes any other oral or written communications, agreements or representations with respect to the Software and/or Manuals provided that neither party excludes any liability for any fraudulently made representation or warranty.

7.2 Nothing in this Agreement will affect the statutory rights of a consumer in ‘consumer transactions’ under any applicable statute.

7.3 If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable for any reason then the validity of the remainder of the Agreement will not be affected.

7.4 This Agreement is governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.

7.5 Should you have any questions concerning this Agreement please contact Mr Simon Fisher of Benchmark at 213 High Street, Street, Somerset, BA16 0NE.

7.6 You agree that any variation to this Agreement will not be binding unless it is set out in writing and signed by both you and Benchmark.

7.7 No delay by Benchmark in enforcing its rights under this Agreement will prejudice its rights and, in any event, will not be deemed to be a waiver of any other right or later breach.

7.8 Notices sent by either party under this Agreement must be sent by first class mail or by email transmission.  Correctly addressed notices sent by first class mail shall be deemed to have been delivered 72 hours after posting whilst notices sent by email shall be deemed to have been received within 2 hours of sending provided, in all cases, that the time for service falls on a normal working day in England and Wales.  If not, then receipt shall be deemed to take place at 10am on the next working day.

7.9 Benchmark shall not be liable to you for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any Act of God, governmental act, fire, flood, explosion, civil commotion or damages relating to failures of telecommunications, the internet, electronic communications, corruption, security, loss or theft of data, viruses, spyware, loss of business, revenue, profits or investment, or use of software or hardware that doesn’t meet Benchmark requirements.

7.10 For the avoidance of doubt, unless the contrary is stated expressly, nothing in this Agreement shall confer on any third party any benefit or the right to enforce any of the terms of this Agreement.

7.11 You agree that Benchmark shall be entitled to use within its business all the details it has about you in any way it thinks fit and you confirm that, in accordance with the Data Protection Act 1998, you give your unequivocal consent to all such use.