Software End User License Agreemnt
Software End User Licence Agreement ("EULA")
(1) DigiBlu UK Limited (the "Supplier")
(2) End Users of the Software (the "End User")
End User Licence Agreement (EULA)
Please read this EULA carefully, as it confirms the basis upon which DigiBlu UK Limited UK Registered Company No. 12015792 “We”; “Us”; “Our” or the “Supplier” permit “You” to be an “End User” of the Software.
1. Definitions and interpretation
1.1 In this EULA except to the extent expressly provided otherwise:
“Business Day” means a day other than a Saturday, Sunday or public holiday or a day when banks are not open for their full ranges of services in England;
“Customer” means any corporate entity which enters into a Software as a Service Licence Agreement with a Distributor to use the Software in connection with the delivery of the business of the Customer;
“Data Protection Legislation” means all applicable laws relating to the collection, storage and processing of data relating to living subjects in the Territory and or any other territory in which the Software is used and or data is stored or processed together with any successor applicable laws, regulations, and secondary legislation, as amended, or updated from time to time;
“Distributor” means a corporate entity appointed by the Supplier to market, sell and distribute the products and services associated with the Software in a Territory;
“End User” means any person who provides services to a Distributor or a Customer in whole or in part by the use of the Software;
“End User Licence Agreement” or “EULA” means this End User Licence Agreement and Fair Use Policy for the Software to facilitate its use by End Users as detailed herein and in the Software Distribution Agreement Schedule 4;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means the Supplier’s analyser and cloud based information technology hosting services, as specified in the Specification included in the Software as a Service Licence and or provided via the internet in accordance with this Agreement;
"Intellectual Property Rights" means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; whether vested, contingent or future and wherever existing;
"Maintenance Services" means the Software Maintenance Services that We supply to You under the Software as a Services Licence and or the Software Distribution Agreement as appropriate;
"Minimum Term" means the Term as set out in the Software Distribution Agreement;
“Personal Data” means information relating to a living person that is prescribed in the Data Protection Legislation or which is of a personal nature that should only be stored and or processed for the period of time for which it was gathered, stored, and processed with the permission of the living person to whom it relates;
"Services" means any services that We provide to You under the Software as a Service Licence and or the Software Distribution Agreement;
“Software” means the software provided by the Supplier as described in Schedule 1 of the Software Distribution Agreement and the Software Specification in the Software as a Service Licence Agreement;
“Source Code” means the Software code in human readable form or any part of the Software code in human readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
"Supplier" means DigiBlu UK Limited, a company incorporated in England and Wales under company registration number 12015792, The Hamilton Centre, Suite 3, Rodney Way, Chelmsford, Essex, CM1 3BY, England;
"Support Services" means support in relation to the use of the Software as set out in the Software as a Service Licence and or the Software Distribution Agreement and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;
“Territory” means the Territory specified in Part 4 of Schedule 1 of the Software Distribution Agreement in respect of which the Supplier may from time to time appoint exclusive or non-exclusive Distributors or those Territories which the Supplier has reserved for itself; and
"Term" means the duration of a Software as a Service Licence Agreement and the Software Distribution Agreement.
2.1 The Distributor or Customer for whom You provide services has entered into a Software as a Service Licence agreement which Licenses You for the duration of that agreement to a worldwide, non-exclusive right to access and use the Software:
(a) in accordance with the number of End User Licences that have been purchased under the Software as a Service Licence;
2.2 You may not sub-license and must not purport to sub-license any rights granted under Clause 2.1 without the prior written consent of the Supplier.
2.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 3 shall be subject to the following prohibitions that You are bound by:
(a) not to sell, resell, rent, lease, loan, supply, publish, distribute, or redistribute the Software or permit or collude with others to do the same;
(b) Not to alter, edit or adapt the Software; and
(c) Not to decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.
2.4 The User shall be responsible for making reasonable endeavours and security measures to ensure that access to all copies of the Software is restricted to persons authorised and licenced to use them under this EULA and the Software as a Service Licence Agreement.
3. Source Code
3.1 Nothing in this EULA shall give You or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
4. Maintenance Services
4.1 The Supplier shall provide maintenance services from time to time, with reasonable skill and care, to ensure that the Software is maintained to what the Supplier considers to be a reasonable standard.
5. Support Services
5.1 The Supplier shall provide, with reasonable skill and care, the Support Services that it considers to be necessary to You during the Term.
6. No assignment of Intellectual Property Rights
6.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Supplier to You.
7.1 The Supplier warrants to You that it has the legal right and authority to enter into and to perform its obligations under this EULA.
7.2 Both Your and Our warranties and representations in respect of the subject matter of this EULA are expressly set out herein. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this or any related contract.
8. Acknowledgements and warranty limitations
8.1 Both the Supplier and End User acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, We give no warranty or representation that the Software will be wholly free from defects, errors and bugs.
8.2 Both the Supplier and End User acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Supplier gives no warranty or representation that the Software will be entirely secure.
8.3 You acknowledge that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Supplier does not warrant or represent that the Software will be compatible with any other software.
8.4 The End User acknowledges that the Supplier will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Supplier does not warrant or represent that the Software or the use of the Software by the End User will not give rise to any legal liability on the part of the End User or any other person.
9. Limitations and exclusions of liability
9.1 Nothing in this EULA will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
And that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
9.2 The limitations and exclusions of liability set out in this Clause 11 and elsewhere in this EULA:
(a) are subject to Clause 11.1; and
(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
9.3 The Supplier will not be liable to the End User in respect of any losses arising out of a Force Majeure Event.
9.4 The Supplier will not be liable to the End User in respect of any loss of profits or anticipated savings.
9.5 The Supplier will not be liable to the End User in respect of any loss of revenue or income.
9.6 The Supplier will not be liable to the End User in respect of any loss of business, contracts, or opportunities.
9.7 The Supplier will not be liable to the End User in respect of any loss or corruption of any data, database, or software.
9.8 The Supplier will not be liable to the End User in respect of any special, indirect, or consequential loss or damage.
9.9 The liability of the Supplier to the End User under this EULA in respect of any event or series of related events shall not exceed One Hundred (100) per cent of the revenue derived from the End User during the twelve (12) month period immediately preceding the End User becoming aware of or should reasonably have become aware of a claim arising.
9.10 The aggregate liability of the Supplier to the User under this EULA shall not exceed One Hundred (100) per cent of the total amount paid and payable by the User to the Supplier under this EULA in the twelve (12) month period preceding the User becoming aware of or should reasonably have become aware of a claim arising.
10.1 This EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements, and understandings in respect of that subject matter.
10.2 This EULA shall be governed by and construed in accordance with English law and the courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA. .
11 Fair Use Policy
1.1 This fair use policy (the "Policy") sets out the rules governing:
(a) the use of the website that is hosting the delivery of the Software and any successor website, and the services available on that website or any successor website (the "Services"); and
(b) the transmission, storage, and processing of content by the Customer or by any person on behalf of the Customer, using the Services ("Content").
1.2 References in this Policy to "You" are to any Customer for the Services and any individual user of the Services (and "Your" should be construed accordingly); and references in this Policy to "Us" are to the Supplier (and "We" and "Our" should be construed accordingly).
1.3 By using the Services, You agree to the rules set out in this Policy.
1.4 We will ask for Your express agreement to the terms of this Policy before You upload or submit any Content or otherwise use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the Services, You warrant and represent to us that You are at least 18 years of age.
General usage rules
1.6 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
1.7 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive, or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive, or harmful purpose or activity.
1.8 You must ensure that all Content complies with the provisions of this Policy.
1.9 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
1.10 Content, and the use of Content by Us in any manner licensed or otherwise authorised by You, must not:
(a) be libellous or maliciously false
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trademark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
1.11 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
1.12 Content must not depict violence.
1.13 Content must not be pornographic or sexually explicit.
1.14 Content must not be untrue, false, inaccurate, or misleading.
1.15 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
1.16 You must ensure that Content is appropriately categorised.
1.17 You should use appropriate and informative titles for all Content.
1.18 You acknowledge that we actively monitor the Content or the use of the Services.
1.19 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
1.20 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
1.21 The Content must not contain or consist of, and You must not promote, distribute, or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications, or technologies.
1.22 The Content must not contain or consist of, and You must not promote, distribute, or execute by means of the Services, any software, programs, routines, applications, or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.