- Capitalised terms used in the following provisions have the meaning given to them in the licence agreement in which they are incorporated.
Intellectual Property Rights and Restrictions
- Fontsmith is and shall remain the owners of all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off in the Font Software and you hereby acknowledge that the Font Software is protected under the Copyright, Designs and Patents Act 1988 and equivalent international and national laws and treaties.
- All Font Software will be supplied in machine executable code.
- Except as expressly set out in this agreement or as permitted by any local law, you will not copy, alter, modify, combine, rent, sub-licence, merge or otherwise transfer the Font Software. You must also not disassemble, decompile, reverse engineer or create derivatives based on the whole or part of the Font Software other than as permitted by law for the purpose of the Font Software to achieve inter-operability with another software program.
- Fontsmith warrants that, for a period of 14 days after entering into this agreement, the Font Software will, under normal use in accordance with the provisions of the Licence Parameters, operate or perform in substantial accordance with the specifications set forth in the documentation accompanying the Font Software.
The warranty contained in Clause 3.1 shall not apply to the extent:
- the failure of the Font Software results from any modification of the Font Software other than by or on behalf of Fontsmith;
- any attempt to rectify the failure has been made by or on your behalf;
- the failure is attributable to causes external to the Font Software including but not limited to failure or fluctuation of electrical supplies, hardware failures (including failure of the hardware on which the Font Software is installed), accidents or natural disasters; or
- the Font Software has been used outside of the Licence Parameters, and is subject to you providing:
- full written reports regarding the failure of the Font Software and the circumstances of the failure;
- any other information reasonably requested by Fontsmith for the investigation of the failure.
In relation to a breach of Clause 3.1 the sole and exclusive remedy available to you will be, at Fontsmith’s sole discretion, either:
- the repair or replacement of the Font Software that is in breach of the warranty; or
- a refund of the fee paid for the defective Font Software.
- EXCEPT FOR WARRANTIES EXPRESSLY SET OUT IN THIS CLAUSE, THE FONT SOFTWARE IS DELIVERED "AS IS" AND FONTSMITH MAKES AND YOU RECEIVE NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES.
- FONTSMITH HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE CONCERNING THE FONT SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE LEVELS, NON-INFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT, OPERATION WITHOUT INTERRUPTION, ERRORS WITHIN THE FONT SOFTWARE, COURSE OF DEALING, OR USAGE IN TRADE.
Limitation of Liability
This section sets out our liability to you for:
- a breach of this agreement;
- any statement, representation, tortious act or omission (including negligence) arising under this agreement.
- This includes Fontsmith’s liability for acts or omissions of our employees, agents, subcontractors or consultants.
- Fontsmith shall not be liable for any loss of profits, goodwill, reputation, business, anticipated savings, contracts, goods, data (or corruption of that data) or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- Fontsmith’s liability for all other claims which arise in connection with this agreement shall be limited to the amount paid by you to us for the licence of the Font Software.
Nothing in this section, or elsewhere in this agreement, excludes or limits Fontsmith’s liability for:
- death or personal injury resulting from negligence; or
- any damage or liability you incur as a result of fraud or fraudulent misrepresentation by
- Where applicable, you acknowledge and agree that your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on our behalf in connection with this agreement.
- Where applicable and reasonably required, we may require access to your end customer’s personal data and you warrant that you have the right to grant us access to this.
You are strictly prohibited from:
- Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate this agreement without liability to the other immediately on giving written notice to the other if:
- that other Party commits any remediable material breach of its obligations under this agreement which is not remedied within 30 days (or where the breach is in relation to a failure to pay any amount due, 7 days) after the service of written notice specifying the breach and requiring it to be remedied; or
- that other Party commits any non-remediable material breach; or
- that other Party ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement) or becomes insolvent or is otherwise deemed (acting reasonably) unable to pay its debts within the meaning of the insolvency legislation applicable to that Party.
On termination of this agreement for any reason:
- you shall immediately pay to Fontsmith all of Fontsmith’s outstanding unpaid invoices and interest;
- you shall immediately and irretrievably delete the Font Software from your systems;
- any section which expressly, or by implication, has effect after termination shall continue in full force and effect.
You may not assign, charge, sub-contract, sub-license (unless expressly permitted to do so in this agreement) or otherwise dispose of any of its rights or obligations under this agreement without Fontsmith’s prior written consent.
The rights of either Party arising out of any provision of this agreement or any breach of it shall not be waived except in writing. Any waiver by either Party of any of its rights under this agreement or of any breach of this agreement shall not be construed as a waiver of any other rights or of any other or further breach.
This agreement (and any document referred to in it) constitutes the entire agreement of the Parties with respect to its subject matter. Each Party warrants to the other that, in entering into this agreement it does not rely on any statement, representation, assurance or warranty of any person (whether a Party to this agreement or not) other than as expressly set out in this agreement. Nothing in this section limits or excludes any liability for fraud.
All agreements and covenants contained in this agreement are severable and in the event of any of them being held to be invalid, unlawful or unenforceable to any extent by any competent court this agreement shall be interpreted as if such invalid unlawful or unenforceable agreements or covenants were not contained within this agreement.
- This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Issue Date: 1 August 2014