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On-Line Purchases

Delivery Policy

General

Delivery is as stated on the actual ordering site.

Mindjet products

Ordered by telephone or online from the Earl Associates web site.

For electronic download, delivery is online and there is no shipping charge.

License Keys will be delivered by email.

For physical orders (with CD) shipment is normally made by post from Mindjet's central warehouse in Germany. Delivery is normally within 3 working days of placement of order. Postage and handling will be added to the order (normally £10.00 + VAT)

This may vary during public holiday periods.

 

Refund Policy

 

In all cases the refund policy is the refund policy of the software manufacturer.

This is normally available for viewing on the manufacturers' web shop and is always included in the Licence Agreement.

For your convenience the Mindjet End User License Agreement is reproduced below.

For the Mindjet "Thirty 30 day Money back Guarantee" see Paragraph 4 or click here

 

To speak to someone at Earl Associates

telephone: +44 (0)1223 290343 or email info@earlassociates.co.uk


 

MINDJET END USER LICENSE AGREEMENT

MINDMANAGER X5 PRO AND X5 EDITIONS

for UK

NOTICE: This End User License Agreement (“this Agreement”) is a legally binding contract. This contract contains two sections. Section A pertains to the MindManager license agreement by MINDJET LLC. Section B pertains to the SOAP Toolkit license agreement by MICROSOFT CORPORATION. Please read the terms of this Agreement carefully before opening or installing the software. Do not open the package, break the seal and/or install the software until you have read this Agreement in its entirety. By opening this package, breaking the seal, clicking on the “AGREE” OR “YES” button or otherwise indication assent electronically, or loading the software, you, on behalf of yourself and the entity for whom you are agree to the TERMS AND CONDITIONS of this AGREEMENT. Mindjet LLC (“Mindjet”) licenses the enclosed software to you only upon the condition that you accept all of the terms contained in this Agreement. If you do not agree to these terms and conditions, CLICK ON THE “I DO NOT AGREE”, “NO” BUTTON, OR MAKE NO FURTHER USE OF THE SOFTWARE. IF YOU DO NOT AGREE TO THESE TERMS, then Mindjet is un-willing to license the software to you, in which event you should make no further use of the software, return the full product with proof of acquisition to Mindjet or the dealer from whom it was acquired within 30 days of acquisition, and your money will be refunded.

Section A

1 Application of this Agreement:
  The terms of this Agreement shall apply to and be incorporated in all invoices, orders, or electronic confirmations issued by one party to the other and all other subsequent agreements between the parties in relation to the Software.

 
2 License:
2.1    The software that accompanies this Agreement, including the clip art and images (the “Symbols”) and the software documentation (the “Documentation”) (referred to in this Agreement collectively as the “Software”) is the property of Mindjet or its licensers, and is protected by copyright and other intellectual property rights. Mindjet at all times owns the Software. Upon your acceptance of this Agreement, Mindjet grants to you a non-exclusive, non-transferable (unless transferred in accordance with Clause 2.2 (d) hereof), non-sublicensable, and perpetual (unless terminated in accordance with Clause 6 hereof) license to use the Software as specified in Clauses 2.2 and 2.3 hereof.

Except as may be modified by a written addendum signed by Mindjet which may accompany, or be added to, this license, your rights and obligations with respect to the use of this Software are as follows:
2.2 You may:
(a)   only allow use of the Software by such number of Users as indicated by the “Quantity” or “Number of Licences” section of the invoice, quotation, or electronic confirmation issued by Mindjet or its Resellers in connection with your purchase of the Software. “ The Software is “in use” on a computer when it is loaded into the temporary memory (i.e. RAM) or installed into the permanent memory (e.g. hard disk, CD-ROM, or other storage device) of that computer. For the purpose of this Agreement, “User(s)” means Licensee, if Licensee is an individual acquiring the Software for use at office or home (in which case Licensee's immediate family members residing in the same household shall not be considered additional Users), or, if Licensee is a business or commercial entity or government agency, its current employees. For qualifying educational institutions, "Users" also means faculty and staff teaching for, or employed by, Licensee and registered students enrolled at a single campus operated by Licensee. Subject to the limitations of this licence, each authorized User may only use the Software on any one central processing unit (CPU), workstation or portable, which is owned or controlled by Licensee, at any one time;
(b) use the Software on a network, provided that Licensee has a licensed copy of the Software for each computer that can access the Software over that network;
(c) use the Software on a server, provided that Licensee has an especially licensed copy of the Software for server use;
(d) use the Software on a personal digital assistant (PDA) such as a Palm computing platform, provided that Licensee has acquired a licensed copy of the Software for each PDA that uses the Software;
(e) use the SmartMapX Technology™ to access Web Services subject to your assent to the Terms and Conditions of each Web Service, including your agreement not to resell, repackage or retransmit content and data from the Web Services or RSS feed or any other XML based services; and
(f) after written notice to Mindjet, transfer the Software on a permanent basis to another person or entity, provided that you retain no copies of the Software and the transferee agrees to the terms of this Agreement;
(g) use the Java Applet from Byte-Size Computing which is integrated in the Software only in combination with the HTML-Export of the Software;
(h) use the Symbols and Documentation only in combination with the software that accompanies this Agreement;
(i) in the event that your use of the Software is for the purpose of evaluating whether to acquire a license or not, you may use the Software free of charge for a period of 21 days and all of the terms of this Agreement shall apply. If you have not acquired a license at the end of such period, the Software will cease to function automatically and this limited license shall terminate.
2.3 You may not:
(a)   rent, lease, copy, distribute, license, or otherwise transfer (except as permitted by Clause 2.2 (d) hereof) the Software to any other party. Licensee may make such reasonable number of back-up copies of the Software as are necessary for its lawful use, including for archival and disaster recovery purposes, but only if and so long as Licensee stores such copies separately from any actively used software. The Software contains copyrighted material, trade secrets, and other proprietary material. If Licensee has the right to duplicate the Software for multiple Users, then Licensee must reproduce on all such copies of the Software the copyright notices and any other proprietary legends that were on the original copy of the Software;
(b) except to the extent expressly permitted by mandatory provisions of applicable law (including national laws implementing the EEC Council Directive 91/250/EEC of May 14, 1991 on the legal protection of computer programs) in order to gain certain information and/or for certain limited purposes specified in such laws, Licensee may not, and Licensee may not allow any third party to, without Mindjet’s prior written consent (aa) decompile, disassemble, reverse engineer, modify, or translate the Software or otherwise attempt to derive the source code; (bb) modify the Software, create derivative works based on the Software, attempt to modify the Software, or attempt to create derivative works based on the Software; or (cc) copy the Software except as expressly permitted under Clause 2.3 (a) hereof. Licensee shall not exercise the mandatory rights addressed in sub-clause (aa) of the preceding sentence, unless Licensee has first requested the required information from Mindjet in writing, and has agreed to pay Mindjet’s reasonable costs and expenses for procuring and supplying such information, and Mindjet has not complied with Licensee’s request within a commercially reasonable period of time. You are given notice that any and all information obtained during such lawful reverse engineering and/or decompiling activities, including, but not limited to, the organization, logic, algorithms, and processes of the Software, is and shall remain the confidential and proprietary information of Mindjet or its licensors.
2.4 For the avoidance of doubt, Licensee shall not make copies of the Documentation without the prior written permission of Mindjet, provided that for electronic transactions Licensee may make one (1) hard copy of such Documentation for each User.

 
3 Technical Support:
  Limited technical support is provided free of charge through Mindjet’s web site (www.mindjet.com/uk), details of which are available on the web site. In order to receive technical support, Licensee must register the Software via sending electronic mail, mailing in the registration card that is attached to the Software, or using online registration. If Licensee wishes to receive technical support apart from that which is provided free of charge via the web site, Mindjet may, following a request from the Licensee, provide such further technical support subject to the agreement of additional consideration between the parties. Further information in relation to type, availability, and financial conditions of technical support are shown on the internet at www.mindjet.com/uk.

 
4 Thirty Day Money Back Guarantee:
  If you are the original licensee of this copy of the Software and are dissatisfied with it for any reason, you may return the Software, together with your receipt, to the authorized dealer who sold you the Software or, only if you acquired the Software directly from Mindjet itself, to Mindjet, postage prepaid, for a full refund at any time during the thirty-day period following the delivery to you of the Software; provided, however, that you must also return or delete, at Mindjet’s sole discretion, all other copies of the Software in your possession, and certify compliance with the foregoing obligation in writing.

 
5 Export Law Assurances:
  You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Afghanistan (Taliban-controlled areas), Cuba, Iran, Iraq, Libya, North Korea, Serbia (except Kosovo), Sudan and Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List and any list under the laws and regulations of the jurisdiction in which Licensee obtained the Software. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls as defined by EAR, 15 C.F.R. Parts 730-774, and BXA (http://www.bxa.doc.gov).

 
6 Termination:
  This license is effective until terminated. Licensee may terminate this license at any time by destroying all copies of the Software. Mindjet may terminate this Agreement immediately if Licensee fails to comply with any provision of this license or if Licensee suffers any form of insolvency or administration. Upon termination, Licensee must destroy all copies of the Software and cease and desist from any further use of the Software.

 
7 Licensee’s Warranty of Authority:
  Licensee warrants and represents that the person who has agreed to the terms of this Agreement (whether by installing the Software, indicating “I Accept” or otherwise), has full authority to bind Licensee.

 
8 Limited Warranty:
8.1 Limited Warranty. Mindjet warrants that (a) the Software has been developed and tested with reasonable care and attention, and (b) for a period of 90 days from the date of Licensee’s acquisition of the Software, the Software will substantially perform the functionality described in the Documentation; provided, however, that the Software is used with software and hardware that complies with the minimum system requirements that are set out on the Mindjet website (www.mindjet.co.uk). Mindjet’s sole and exclusive liability and Licensee’s sole and exclusive remedy under this limited warranty shall be, at Mindjet’s option, (a) repair or replacement of all or the affected portion of the Software, or (b) a refund of fees against return of the Software and termination of all applicable licenses. Mindjet does not warrant or otherwise represent that (a) the Software or any portion thereof will meet Licensee’s requirements; (b) the operation of the Software will be uninterrupted or error-free; or (c) the Documentation thereto will be error-free.
8.2 Disclaimer. Except for the express warranties set forth in Clause 8.1 hereof, Mindjet makes no other conditions or warranties, express or implied, regarding the Software and (subject to Clause 10.1 hereof) all other conditions, warranties, or other terms, express or implied (whether by statute, common law, or otherwise), including without limitation the implied conditions, warranties, or terms as to fitness for a particular purpose or satisfactory quality are hereby excluded from this Agreement and Licensee shall not be entitled to any remedies that are not expressly provided herein.
8.3 Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. Reasonable precautions have been taken to ensure the Software is virus free. However, before using it you should first ensure that its use will not interfere with the proper functioning of the Licensee’s computer software and hardware (including networks) and that you maintain adequate protection for the reconstruction of lost data.

 
9 Indemnity:
9.1 If any claim is made against the Licensee based upon infringement of a third party’s intellectual property rights by use of the Software within the terms of this Agreement, Licensee shall promptly notify Mindjet in writing. The Licensee agrees that in these circumstances Mindjet may (a) modify or substitute the Software so that it becomes non-infringing, (b) procure the Licensee the right to continue to use the Software, or (c) terminate this licence and return the price paid by the Licensee for the infringing Software less depreciation determined by prorating the total price paid over a straight-line three year period. Mindjet shall not be liable for any infringing use of the Software arising out of the combination of the Software with any other software not supplied by Mindjet or any use outside the terms of this Agreement.
9.2 Subject to Clause 9.3, Mindjet will indemnify and hold Licensee harmless from and against, and will defend or settle at Mindjet’s expense any action or other proceeding brought against Licensee to the extent that it is based on a claim that the use of the Software as licensed in this Agreement infringes any UK copyright, any patent issued having effect in the UK as of the commencement date of this Agreement, or that the Software incorporate any misappropriated trade secrets.
9.3 Mindjet will have sole control of the defence and settlement of any action, proceeding, or claim and Licensee will provide Mindjet with reasonable assistance in its defence and settlement.
9.4 This Clause 9 states the entire obligation and liability of Mindjet and the sole remedy of Licensee in respect of any infringement or alleged infringement of any Intellectual Property Rights arising from the acquisition, possession, or use of the Software. All other obligations of Mindjet in relation to infringement or alleged infringement of the Intellectual Property Rights of any person which, but for this Clause 9, would have effect are hereby excluded.

 
10 Exclusion and Limitation of Liability:
10.1 Nothing in this Agreement shall exclude or limit Mindjet’s Liability for (a) any fraudulent Misrepresentation, (b) death or personal injury caused by its Breach of Duty, (c) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982, or (d) any Liability which cannot be excluded by law. Nothing in this Agreement shall exclude Mindjet’s Liability for any Misrepresentation as to a fundamental matter, including any Misrepresentation as to a matter fundamental to Mindjet’s ability to perform its obligations under this Agreement.
10.2 For the avoidance of doubt, the limit on Liability set out in Clause 10.4 hereof shall apply to Mindjet’s Liability for any Misrepresentation as to a fundamental matter, including any Misrepresentation as to a matter fundamental to Mindjet’s ability to perform its obligations under this Agreement.
10.3 Save as provided in Clause 10.1 hereof, Mindjet shall have no Liability for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known, or otherwise):
10.3.1   loss of profit or revenue;
10.3.2 loss of actual or anticipated profits (including for loss of profits on contracts);
10.3.3 loss of the use of money;
10.3.4 loss of anticipated savings;
10.3.5 loss of business, sales, or contract;
10.3.6 loss of opportunity;
10.3.7 loss of goodwill;
10.3.8 loss of reputation;
10.3.9 loss of, damage to, or corruption of data;
10.3.10 costs incurred in modifying the software (whether in accordance with the Documentation or not); or
10.3.11 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in Clauses 10.3.1 - 10.3.10 hereof).
10.4 Except as provided in Clause 10.1 hereof, Mindjet’s total Liability for any one event or series of events, or the supply or non-supply of the Software, or otherwise, however caused, whether derived from breach of contract, tort (including, but not limited to, Breach of Duty and strict liability), shall in no circumstances exceed a sum three times the price paid by the Licensee for the Software.
10.5 Any action against Mindjet must be brought within 2 years from the date when the cause of action arises.
10.6 Definitions
10.6.1   “Breach of Duty” means the breach of any (a) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract, or (b) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
10.6.2 “Liability” means liability in or for breach of contract, Breach of Duty, Misrepresentation, restitution, or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement.
10.6.3 “Misrepresentation” means any untrue statement (whether written or oral) made to Licensee, upon which Licensee is alleged to have relied in entering into this Agreement.
10.7 For purposes of this Clause 10, the term “Mindjet” includes its employees, agents, sub-contractors, and suppliers.
10.8 You acknowledge that given the price paid for the Software and your right to a refund in accordance with Clause 4 of this Agreement, the complicated nature of the Software, the almost limitless number of software and hardware environment combinations into which the Software might be introduced, the fact that Mindjet cannot anticipate the particular purpose for which you are using the Software and the availability of insurance for any loss that the above limitations and exclusions are reasonable in all the circumstances.

 
11 Data Collection and Privacy Policy:
  You acknowledge and agree that Mindjet may collect and retain information about you, such as your name, address, and e-mail address. You also understand that Mindjet may employ other companies to perform functions on our behalf, such as fulfilling orders, delivering packages, sending postal mail and e-mail, providing marketing assistance, and processing credit card payments. These companies may have access to personal information needed to perform their functions, and may not use such information for other purposes. By assenting to this agreement, you agree that you have read and understand our Privacy Policy. For more detailed information, http://www.mindjet.com/uk/privacy.

 
12 General:
12.1 Governing Law and Forum. This Agreement will be governed by the laws of England. The parties to this Agreement irrevocably agree for the exclusive benefit of Mindjet that the courts of England, shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement and that accordingly any proceedings brought by Licensee in respect of any such claim or matter may be brought in such courts. Nothing in this Clause shall limit the right of Mindjet to take proceedings against Licensee in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
12.2 Manufacturer: Manufacturer of the Software is Mindjet LLC, 125 E. Sir Francis Drake Blvd., 4th Floor, Larkspur, California, USA 94939.
12.3 Modifications. This Agreement may only be modified by a written license addendum signed by Mindjet that may accompany or be added to this license.
12.4 Third Party Rights. Save as provided in Clause 10.7, no person other than a party to this Agreement shall be entitled to enforce any term of it save that where an agreement is entered into pursuant to which any rights and/or obligations contained in this Agreement are permissibly assigned or novated to a third party, but nothing in this Clause shall of itself operate to prevent the assignee from taking the benefit or, and enforcing, any rights so assigned. The parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply.
12.5 Electronic Commerce (EC Directive) Regulations. The parties agree that, to the extent permitted by law, the provisions of the Electronic Commerce (EC Directive) Regulations 2002 shall not apply to this Agreement.
12.6 Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
12.7 Severability. The invalidity or unenforceability of any term or any part of any term of, or any right arising pursuant to, this Agreement shall not affect the validity or enforceability of any other terms of rights or the remainder of any such term or right which shall continue in full force and effect except for any such invalid or unenforceable provision or part thereof.
12.8 Entire Agreement
12.8.1   This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior agreements, communications, and/or representations between the parties, whether oral or written, relating to the subject matter hereof.
12.8.2 Licensee shall have no remedy in respect of and Mindjet shall have no liability in respect of any statement (including any untrue statement) whether written or oral, made to it upon which Licensee relied in entering into this Agreement, unless such statement was a Misrepresentation and (i) was made fraudulently or (ii) was made as to a fundamental matter, including as to a matter fundamental to Mindjet’s ability to perform its obligations under this Agreement.
12.8.3 The Licensee acknowledges and agrees that no representations were made to Licensee prior to entering into this Agreement and that, in entering into this Agreement, Licensee does not rely on any representations made to Licensee.

Section B

MINDJET INCORPORATES MICROSOFT TECHNOLOGY INTO THE MINDMANAGER PRODUCTS. BY ASSENTING TO OUR TERMS AND CONDITIONS, YOU ALSO AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS WITHIN THE MICROSOFT END USER LICENSE AGREEMENT.

MICROSOFT SIMPLE OBJECT ACCESS PROTOCOL (SOAP) TOOLKIT 3.0

Accompanying this EULA is a copy of the Microsoft software product identified above, which may include software and related "online" or electronic documentation and information (“SOFTWARE PRODUCT”). The SOFTWARE PRODUCT is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is licensed, not sold.

1    GRANT OF LICENSE. This EULA grants you the following rights:
a    General. You may install and use an unlimited number of copies of the SOFTWARE PRODUCT on computers, including workstations, terminals or other digital electronic devices residing on your premises ("Computers") to design, develop, and test your software application(s) (“Application”).
b You may copy and redistribute only the Microsoft Installer Component of the SOFTWARE PRODUCT, which are the files identified as winhttp51.msm, isapi3_files.msm, and soap3_core.msm (the “Redistributable Components”), that you have modified and incorporated into your Application, subject to the following restrictions and limitations:
(i) You shall distribute the Redistributable Components only in conjunction with and as part of an Application that adds significant and primary functionality to the Redistributable Components;
(ii) You shall not use Microsoft’s name, logo or trademarks to market your Application;
(iii) You shall distribute your Application containing the Redistributable Components pursuant to an End-User License Agreement (which may be “break-the-seal”, “click-wrap” or signed), with terms no less protective than those contained herein;
(iv) You shall not permit further redistribution of the Redistributable Components by your end-user customers;
(v) You shall include a valid copyright notice in your own name in your Application, which notice shall be sufficient to protect Microsoft’s copyright in the Redistributable Components; and
(vi) You agree to indemnify, hold harmless and defend Microsoft from and against any claims or lawsuits including reasonable attorneys’ fees, which arise or result from the use or distribution of the modified Redistributable Components and/or your Application.
(vii)  Your license rights to the Redistributable Components are conditioned upon your (a) not incorporating Identified Software into or combining Identified Software with the Redistributable Components or a derivative work thereof; (b) not distributing Identified Software in conjunction with the Redistributable Components or a derivative work thereof; and (c) not using Identified Software in the development of a derivative work of the Redistributable Components. “Identified Software” means software which is licensed pursuant to terms that directly or indirectly (i) create, or purport to create, obligations for Microsoft with respect to the Redistributable Components or derivative work thereof or (ii) grant, or purport to grant, to any third party any rights or immunities under Microsoft’s intellectual property or proprietary rights in the Redistributable Components or derivative work thereof. Identified Software includes, without limitation, any software that requires as a condition of use, modification and/or distribution of such software that other software incorporated into, derived from or distributed with such software be (a) disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge.
c Reservation of Rights. Microsoft reserves all rights not expressly granted to you in this EULA.
2 TRANSFER TO A THIRD PARTY. The initial user of the SOFTWARE PRODUCT may make a one-time transfer of the SOFTWARE PRODUCT to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred SOFTWARE PRODUCT must agree to all the EULA terms. No Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT.
3 LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
4 TERMINATION. Without prejudice to any other rights, Microsoft may cancel this EULA if you do not abide by the terms and conditions of this EULA, in which case you must destroy all copies of the SOFTWARE PRODUCT and all of its component parts.
5 CONSENT TO USE OF DATA. You agree that Microsoft and its affiliates may collect and use technical information you provide as a part of support services related to the SOFTWARE PRODUCT. Microsoft agrees not to use this information in a form that personally identifies you.
6 NOT FOR RESALE SOFTWARE. SOFTWARE PRODUCT identified as “Not for Resale” or “NFR,” may not be resold, transferred or used for any purpose other than demonstration, test or evaluation.
7 EXPORT RESTRICTIONS. You acknowledge that the SOFTWARE PRODUCT is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the SOFTWARE PRODUCT, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/
8 DISCLAIMER OF WARRANTIES. To the maximum extent permitted by applicable law, Microsoft and its suppliers provide to you the SOFTWARE PRODUCT, and any (if any) support services relating to the SOFTWARE PRODUCT (“Support Services”) AS IS AND WITH ALL FAULTS; and Microsoft and its suppliers hereby disclaim with respect to the SOFTWARE PRODUCT and Support Services all warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) warranties, duties or conditions of or related to: merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses, results, workmanlike effort and lack of negligence. ALSO THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE PRODUCT AND ANY SUPPORT SERVICES REMAINS WITH YOU.
9 EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE SUPPORT SERVICES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10 LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Microsoft and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing shall be limited to the greater of the amount actually paid by you for the SOFTWARE PRODUCT or U.S.$5.00. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
11 U.S. GOVERNMENT LICENSE RIGHTS. All SOFTWARE PRODUCT provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All SOFTWARE PRODUCT provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
12 APPLICABLE LAW. If you acquired this SOFTWARE PRODUCT in the United States, this EULA is governed by the laws of the State of Washington. If you acquired this SOFTWARE PRODUCT in Canada, unless expressly prohibited by local law, this EULA is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder, you consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario. If this SOFTWARE PRODUCT was acquired outside the United States, then local law may apply.
13 ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA which is included with the SOFTWARE PRODUCT) are the entire agreement between you and Microsoft relating to the SOFTWARE PRODUCT and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the SOFTWARE PRODUCT or any other subject matter covered by this EULA. To the extent the terms of any Microsoft policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.

 

 

MINDJET LLC - END USER LICENCE AGREEMENT

 

NOTICE: This End User License Agreement (“this Agreement”) is a legally binding contract. Please read the terms of this Agreement carefully before opening or installing the software. Do not [open the package / install the software] until you have read this Agreement in its entirety. By [opening the package / installing the software], you, on behalf of yourself and the entity for whom you are [opening the package / installing the software] (“you” or “Licensee”) assent to the terms of this Agreement. Mindjet LLC ("Mindjet") licenses the enclosed software to you only upon the condition that you accept all of the terms contained in this Agreement. If you do not agree to these terms, then Mindjet is un-willing to license the software to you, in which event you should return the full product with proof of acquisition to Mindjet or the dealer from whom it was acquired within 30 days of acquisition, and your money will be refunded.

1 Application of this Agreement:
  The terms of this Agreement shall apply to and be incorporated in all invoices, orders or electronic confirmations issued by one party to the other and all other subsequent agreements between the parties in relation to the Software.
2 License:
2.1    The software that accompanies this Agreement, including the clip art files (the "Symbols") and the software documentation (the “Documentation”) (collectively, the "Software") is the property of Mindjet or its licensors, and is protected by copyright and other intellectual property rights. Mindjet at all times owns the Software. Upon your acceptance of this Agreement, Mindjet grants to you a non-exclusive, non-transferable (unless transferred in accordance with Clause 2.2 (d) hereof), non-sublicensable, and perpetual (unless terminated in accordance with Clause 6 hereof) licence to use the Software as specified in Clauses 2.2 and 2.3 hereof.

Except as may be modified by a written addendum signed by Mindjet which may accompany, or be added to, this licence, your rights and obligations with respect to the use of this Software are as follows:
2.2 You may:
(a)   only allow the specified number of Users to use the Software, as indicated as "Quantity" or "Number of Licences" on the invoice, quotation or electronic confirmation issued by Mindjet. "User(s)" means Licensee, if Licensee is an individual acquiring the Software for use at office or home (in which case Licensee's immediate family members residing in the same household shall not be considered additional Users), or, if Licensee is a business or commercial entity or government agency, its current employees. For qualifying educational institutions, "Users" also means faculty and staff teaching for, or employed by, Licensee and registered students enrolled at a single campus operated by Licensee. Subject to the limitations of this licence, each authorized User may only use the Software on any one central processing unit (CPU), workstation or portable, which is owned or controlled by Licensee, at any one time;
(b) use the Software on a network, provided that Licensee has a licensed copy of the Software for each computer that can access the Software over that network;
(c) use the Software on a personal digital assistant (PDA) such as a Palm computing platform, provided that Licensee has acquired a licensed copy of the Software for each PDA that uses the Software;
(d) after written notice to Mindjet, transfer the Software on a permanent basis to another person or entity, provided that you retain no copies of the Software and the transferee agrees to the terms of this Agreement;
(e) use the Java Applet from Byte-Size Computing which is integrated in the Software only in combination with the HTML-Export of the Software;
(f) use the Symbols and Documentation only in combination with the software that accompanies this Agreement;
(g) in the event that your use of the Software is for the purpose of evaluating whether to acquire a licence or not, you may use the Software free of charge for a period of 21 days and all of the terms of this Agreement shall apply. If you have not acquired a licence at the end of such period, the Software will cease to function automatically and this limited licence shall terminate.
2.3 You may not:
(a)   rent, lease, distribute, license, or otherwise transfer (except as permitted by Clause 2.2 (d) hereof) the Software to any other party. Licensee may make such reasonable number of back-up copies of the Software as are necessary for its lawful use, including for archival and disaster recovery purposes, but only if and so long as Licensee stores such copies separately from any actively used software. The Software contains copyrighted material, trade secrets and other proprietary material. If Licensee has the right to duplicate the Software for multiple Users, then Licensee must reproduce on all such copies of the Software the copyright notices and any other proprietary legends that were on the original copy of the Software;
(b) except to the extent expressly permitted by mandatory provisions of applicable law (including national laws implementing the EEC Council Directive 91/250/EEC of May 14, 1991 on the legal protection of computer programs) in order to gain certain information and/or for certain limited purposes specified in such laws, Licensee may not, and Licensee may not allow any third party to, without Mindjet’s prior written consent (aa) decompile, disassemble, reverse engineer, modify, or translate the Software or otherwise attempt to derive the source code; (bb) modify the Software, create derivative works based on the Software, attempt to modify the Software, or attempt to create derivative works based on the Software; or (cc) copy the Software except as expressly permitted under Clause 2.3(a) hereof. Licensee shall not exercise the mandatory rights addressed in sub-clause (aa) of the preceding sentence, unless Licensee has first requested the required information from Mindjet in writing, and has agreed to pay Mindjet’s reasonable costs and expenses for procuring and supplying such information, and Mindjet has not complied with Licensee’s request within a commercially reasonable period of time. You are given notice that any and all information obtained during such lawful reverse engineering and/or decompiling activities, including but not limited to, the organization, logic, algorithms and processes of the Software, is and shall remain the confidential and proprietary information of Mindjet or its licensors.
2.4 In order to receive technical support[, which is subject to additional consideration,] Licensee must register the Software via sending electronic mail, mailing in the registration card that is attached to the Software, or using online registration.

 
3 Technical Support:
  In order to receive technical support, Licensee must register the Software via sending electronic mail, mailing in the registration card that is attached to the Software, or using online registration. Free of charge basic Technical Support is only granted via the Mindjet website. If Licensee wishes more Technical Support or is Technical Support given by Mindjet on order of Licensee, the support is given on a payment basis, which is subject to additional consideration between the parties. All information in relation to type, times, and financial conditions of support are shown in the internet: www.mindjet.com/eu.

 
4 Thirty Day Money Back Guarantee:
  If you are the original licensee of this copy of the Software and are dissatisfied with it for any reason, you may return the Software, together with your receipt, to the authorised dealer who sold you the Software or, only if you acquired the Software directly from Mindjet itself, to Mindjet, postage prepaid, for a full refund at any time during the thirty-day period following the delivery to you of the Software; provided, however, that you must also return or delete, at Mindjet’s sole discretion, all other copies of the Software in your possession, and certify compliance with the foregoing obligation in writing.

 
5 Export Law Assurances:
  Licensee agrees and certifies that neither the Software nor any other technical data received from Mindjet, nor the direct product thereof, will be exported to any destination outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by Licensee outside of the United States, Licensee agrees that Licensee will not re-export the Software nor any other technical data received from Mindjet, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Licensee obtained the Software. The Software may not be exported to any of the following countries: Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria.

 
6 Termination:
  This licence is effective until terminated. Licensee may terminate this licence at any time by destroying all copies of the Software. Mindjet may terminate this Agreement immediately if Licensee fails to comply with any provision of this licence or if Licensee suffers any form of insolvency or administration. Upon termination, Licensee must destroy all copies of the Software and cease and desist from any further use of the Software.

 
7 Licensee’s Warranty of Authority:
  Licensee warrants and represents that the person who has agreed to the terms of this Agreement (whether by installing the Software, indicating “I Accept” or otherwise), has full authority to bind Licensee.

 
8 Limited Warranty:
8.1 Limited Warranty. Mindjet warrants that (a) the Software has been developed and tested with reasonable care and attention and (b) for a period of 90 days from the date of Licensee’s acquisition of the Software, the Software will substantially perform the functionality described in the Documentation; provided, however, that the Software is used with software and hardware that complies with the minimum system requirements that are set out on the Mindjet web site (www.•). Mindjet’s sole and exclusive liability and Licensee’s sole and exclusive remedy under this limited warranty shall be, at Mindjet’s option, (a) repair or replacement of all or the affected portion of the Software, or (b) a refund of fees against return of the Software and termination of all applicable licences. Mindjet does not warrant or otherwise represent that (a) the Software or any portion thereof will meet Licensee’s requirements; (b) the operation of the Software will be uninterrupted or error-free; or (c) the Documentation thereto will be error-free.
8.2 Disclaimer. Except for the express warranties set forth in Clause 8.1 hereof, Mindjet makes no other conditions or warranties, express or implied, regarding the Software and (subject to Clause 10.1 hereof) all other conditions, warranties, or other terms, express, or implied (whether by statute, common law, or otherwise), including without limitation the implied conditions, warranties or terms as to fitness for a particular purpose, or satisfactory quality are hereby excluded from this Agreement and Licensee shall not be entitled to any remedies that are not expressly provided herein.
8.3 Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. Reasonable precautions have been taken to ensure the Software is virus free. However, before using it you should first ensure that its use will not interfere with the proper functioning of the Licensee’s computer software and hardware (including networks) and that you maintain adequate protection for the reconstruction of lost data.

 
9 Indemnity
9.1 If any claim is made against the Licensee based upon infringement of a third party’s intellectual property rights by use of the Software within the terms of this Agreement, Licensee shall promptly notify Mindjet in writing. The Licensee agrees that in these circumstances Mindjet may (a) modify or substitute the Software so that it becomes non-infringing, (b) procure the Licensee the right to continue to use the Software, or (c) terminate this licence and return the price paid by the Licensee for the infringing Software less depreciation determined by prorating the total price paid over a straight-line three year period. Mindjet shall not be liable for any infringing use of the Software arising out of the combination of the Software with any other software not supplied by Mindjet or any use outside the terms of this Agreement.
9.2 Subject to Clause 9.3, Mindjet will indemnify and hold Licensee harmless from and against and will defend or settle at Mindjet’s expense, any action or other proceeding brought against Licensee to the extent that it is based on a claim that the use of the Software as licensed in this Agreement infringes any UK copyright, any patent issued having effect in the UK as of the commencement date of this Agreement, or that the Software incorporate any misappropriated trade secrets.
9.3 Mindjet will have sole control of the defence and settlement of any action, proceeding or claim and Licensee will provide Mindjet with reasonable assistance in its defence and settlement.
9.4 This Clause 9 states the entire obligation and liability of Mindjet and the sole remedy of Licensee in respect of any infringement or alleged infringement of any Intellectual Property Rights arising from the acquisition, possession or use of the Software. All other obligations of Mindjet in relation to infringement or alleged infringement of the Intellectual Property Rights of any person which but for this Clause 9, would have effect are hereby excluded.

 
10 Exclusion and Limitation of Liability:
10.1 Nothing in this Agreement shall exclude or limit Mindjet’s Liability for (a) any fraudulent Misrepresentation, (b) death or personal injury caused by its Breach of Duty, (c) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982, or (d) any Liability which cannot be excluded by law. Nothing in this Agreement shall exclude Mindjet’s Liability for any Misrepresentation as to a fundamental matter, including any Misrepresentation as to a matter fundamental to Mindjet’s ability to perform its obligations under this Agreement.
10.2 For the avoidance of doubt, the limit on Liability set out in Clause 10.4 hereof shall apply to Mindjet’s Liability for any Misrepresentation as to a fundamental matter, including any Misrepresentation as to a matter fundamental to Mindjet’s ability to perform its obligations under this Agreement.
10.3 Save as provided in Clause 10.1 hereof, Mindjet shall have no Liability for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
10.3.1   loss of profit or revenue;
10.3.2 loss of actual or anticipated profits (including for loss of profits on contracts);
10.3.3 loss of the use of money;
10.3.4 loss of anticipated savings;
10.3.5 loss of business, sales, or contract;
10.3.6 loss of opportunity;
10.3.7 loss of goodwill
10.3.8 loss of reputation;
10.3.9 loss of, damage to or corruption of data;
10.3.10 costs incurred in modifying the software (whether in accordance with the Documentation or not) or
10.3.11 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in Clauses 10.3.1 - 10.3.10 hereof).
10.4 Except as provided in Clause 10.1 hereof, Mindjet’s total Liability for any one event or series of events, or the supply or non-supply of the Software, or otherwise, however caused, whether derived from breach of contract, tort (including but not limited to Breach of Duty and strict liability), shall in no circumstances exceed a sum three times the price paid by the Licensee for the Software.
10.5 Any action against Mindjet must be brought within 2 years from the date when the cause of action arises.
10.6 Definitions
10.6.1   “Breach of Duty" means the breach of any (a) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (b) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
10.6.2 "Liability" means liability in or for breach of contract, Breach of Duty, Misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement.
10.6.3 “Misrepresentation” means any untrue statement (whether written or oral) made to Licensee, upon which Licensee is alleged to have relied in entering into this Agreement.
10.7 For purposes of this Clause 10, the term “Mindjet” includes its employees, agents, sub-contractors and suppliers.
10.8 You acknowledge that given the price paid for the Software and your right to a refund in accordance with Clause 4 of this Agreement, the complicated nature of the Software, the almost limitless number of software and hardware environment combinations into which the Software might be introduced, the fact that Mindjet cannot anticipate the particular purpose for which you are using the Software and the availability of insurance for any loss that the above limitations and exclusions are reasonable in all the circumstances.

 
11 U.S. Government Restricted Rights:
  DISTRIBUTION TO THE U.S. GOVERNMENT. This Software is commercial software developed exclusively at private expense. Use, duplication, or disclosure by civilian agencies of the U.S. Government shall be in accordance with subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19. Use, duplication, or disclosure by Department of Defense agencies is subject solely to the terms of this Agreement pursuant to DFARS 227.7202. Contractor/manufacturer of the Software is Mindjet LLC, 125 E. Sir Francis Drake Blvd., 4th Floor, Larkspur, California, USA 94939.
12 General:
12.1 Governing Law and Forum. This Agreement will be governed by the laws of England. The parties to this Agreement irrevocably agree for the exclusive benefit of Mindjet that the courts of England shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement and that accordingly any proceedings brought by Licensee in respect of any such claim or matter may be brought in such courts. Nothing in this Clause shall limit the right of Mindjet to take proceedings against Licensee in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
12.2 Modifications. This Agreement may only be modified by a written licence addendum signed by Mindjet that may accompany or be added to this licence.
12.3 Third Party Rights. Save as provided in Clause 10.7, no person other than a party to this Agreement shall be entitled to enforce any term of it save that where an agreement is entered into pursuant to which any rights and/or obligations contained in this Agreement are permissibly assigned or novated to a third party, but nothing in this Clause shall of itself operate to prevent the assignee from taking the benefit or, and enforcing, any rights so assigned. The parties agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply.
12.4 Electronic Commerce (EC Directive) Regulations. The parties agree that, to the extent permitted by law, the provisions of the Electronic Commerce (EC Directive) Regulations 2002 shall not apply to this Agreement.
12.5 Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
12.6 Severability. The invalidity or unenforceability of any term or any part of any term of, or any right arising pursuant to, this Agreement shall not affect the validity or enforceability of any other terms of rights or the remainder of any such term or right which shall continue in full force and effect except for any such invalid or unenforceable provision or part thereof.
12.7 Entire Agreement.
12.7.1   This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior agreements, communications, and/or representations between the parties, whether oral or written, relating to the subject matter hereof.
12.7.2 Licensee shall have no remedy in respect of and Mindjet shall have no liability in respect of any statement (including any untrue statement) whether written or oral, made to it upon which Licensee relied upon in entering into this Agreement, unless such statement was a Misrepresentation and (i) was made fraudulently or (ii) was made as to a fundamental matter, including as to a matter fundamental to Mindjet’s ability to perform its obligations under this Agreement.
12.7.3 The Licensee acknowledges and agrees that no representations were made to Licensee prior to entering into this Agreement and that, in entering into this Agreement, Licensee does not rely on any representations made to Licensee.

Should you have any questions concerning this Agreement, or if you desire to contact Mindjet for any reason, please write to: Mindjet LLC, 125 E. Sir Francis Drake Blvd., 4th Floor, Larkspur, California , USA 94939 [tel: 415-925-3120 ] [email: info@mindjet.com ].