End User License Agreement (EULA)

Last updated 3 September 2020

End User Licence Agreement (EULA)

By clicking "I Agree", you agree to be bound by the provisions of this EULA. If you do not agree to be bound by the provisions of this EULA, you must click on "Quit" to close the software.

By agreeing to be bound by this EULA, you further agree that any person you authorise to use the Software will comply with the provision of this EULA.

1.      Definitions

1.1    Except to the extent expressly provided otherwise, in this EULA:

"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;

"Effective Date" means the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor;

"EULA" means this end user licence agreement, including any amendments to this end user licence agreement from time to time;

"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);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Licensor" means Astute Graphics Limited, a company incorporated in England and Wales (registration number 06465495) having its registered office at Penn House, 9-10 Broad Street, Hereford, HR4 9AP, England;

"Services" means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

"Software" means Astute Manager and all software, including but not limited to plugins, downloaded, installed and managed by the Astute Manager;

"Software Specification" means the specification for the Software set out in the Documentation;

"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;

"Support Services" means support in relation to the use of the Software 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;

"Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"User" means the person to whom the Licensor grants a right to use the Software under this EULA; and

"User Indemnity Event" has the meaning given to it in Clause 9.1.

2.      Term

2.1    This EULA shall come into force upon the Effective Date.

2.2    This EULA shall continue in force indefinitely, subject to termination in accordance with Clause 11 or any other provision of this EULA.

3.      Licence

3.1    The Licensor hereby grants to the User from the date of supply of the Software to the User a worldwide, non-exclusive licence to:

(a)    install the Software; and

(b)    use the Software in accordance with the Documentation,

subject to the limitations and prohibitions set out and referred to in this Clause 3.

3.2    The User may not sub-license and must not purport to sub-license any rights granted under Clause 3.1.

3.3    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:

(a)    the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;

(b)    the User must not alter, edit or adapt the Software; and

(c)    the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

4.      Source Code

4.1    Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

5.      Support Services

5.1    The Licensor shall provide the Support Services to the User during the Term.

5.2    The Licensor shall provide the Support Services with reasonable skill and care.

5.3    The Licensor may terminate the Support Services by giving to the User at least 30 days' written notice.

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 Licensor to the User, or from the User to the Licensor.

7.      Charges

7.1    The User shall pay the Charges to the Licensor in accordance with this EULA.

7.2    All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor.

8.      Payments

8.1    The Licensor shall issue receipts for the Charges to the User on completion of payment.

8.2    The User must pay the Charges to the Licensor in advance.

8.3    The User must pay the Charges by any method provided by the Licensor (using such payment details as are notified by the Licensor to the User from time to time).

9.      Warranties

9.1    The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

9.2    The Licensor warrants to the User that:

(a)    the Software as provided will conform in all  respects with the Software Specification; and

(b)    the Software shall incorporate security features reflecting the requirements of good industry practice.

9.3    The Licensor warrants to the User that the Software, when used by the User in accordance with this EULA, will not breach any laws, statutes or regulations applicable under English law.

9.4    The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

9.5    All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. 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 EULA or any related contract.

10.    Acknowledgements and warranty limitations

10.1  The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

10.2  The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

10.3  The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.

11.    Indemnities

11.1  The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of this EULA (a "User Indemnity Event").

11.2  The Licensor must:

(a)    upon becoming aware of an actual or potential User Indemnity Event, notify the User;

(b)    provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;

(c)    allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and

(d)    not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User,

without prejudice to the User's obligations under Clause 11.1.

11.3  The indemnity protection set out in this Clause 11 shall be subject to the limitations and exclusions of liability set out in this EULA.

12.    Limitations and exclusions of liability

12.1  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, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

12.2  The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this EULA:

(a)    are subject to Clause 12.1; 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.

12.3  The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

12.4  The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

12.5  The Licensor will not be liable to the User in respect of any loss of revenue or income.

12.6  The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

12.7  The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

12.8  The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

12.9  The aggregate liability of the Licensor to the User under this EULA shall not exceed the total amount paid and payable by the User to the Licensor under this EULA for the Software. 

13.    Termination

13.1  The Licensor may terminate this EULA by giving to the User not less than 30 days' written notice of termination.

13.2  The User may terminate this EULA by giving to the Licensor not less than 30 days' written notice of termination.

13.3  Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)    the other party commits any breach of this EULA, and the breach is not remediable; or

(b)    the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).

13.4  Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)    the other party:

     (i)     is dissolved;

     (ii)    ceases to conduct all (or substantially all) of its business;

     (iii)   is or becomes unable to pay its debts as they fall due;

     (iv)   is or becomes insolvent or is declared insolvent; or

     (v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or

(d)    if that other party is an individual:

     (i)     that other party dies;

     (ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

     (iii)   that other party is the subject of a bankruptcy petition or order.

14.    Effects of termination

14.1  Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.1, 8, 9, 11, 12 and 13.

14.2  Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.

14.3  For the avoidance of doubt, the licences of the Software in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software upon the termination of this EULA.

15.    General

15.1  No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

15.2  If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.3  The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to any third party. Save to the extent expressly permitted by applicable law, the User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.

15.4  Subject to Clause 9.1, 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 between the parties in respect of that subject matter.

15.5  This EULA shall be governed by and construed in accordance with English law.

15.6  The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

16.    Interpretation

16.1  In this EULA, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

16.2  The Clause headings do not affect the interpretation of this EULA.

16.3  References in this EULA to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

16.4  In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.