End User Licence Agreement

This EULA is a legally binding agreement between you (“User” or “you”) and us (Visionable Limited of 3 Dean Trench Street Westminster London, a company incorporated in England and Wales with registration number 09787096 and whose registered office is at 3 Dean Trench Street, London, England, SW1P 3HB (“Licensor”) granting you the right to use and access the Software and the Documentation (each as defined below). 

Before you access the Software (whether by downloading it from our website, installing it directly from an app store including but not limited to the Microsoft Store, Apple Store or Google Play Store  or otherwise), we will ask you to give your express agreement to the provisions of this EULA by filling out a checkbox. 

This is a business to business EULA and is not to be entered into by consumers. You should only confirm your agreement to this EULA if you are using the Software and Documentation in a business context. Where you do not agree to any of the terms of this EULA, you shall click ‘reject’. Doing so means that you are not allowed to access or use the Software.

AGREEMENT

• Definitions

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

“Customer” means the entity employing or engaging the User and in respect of whose internal business purposes the User uses the Software and Documentation. 

“Documentation” means the documentation for the Software produced by the Licensor and as may be delivered or made available by the Customer to the User from time to time, as the same may be updated from time to time;

“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);

“Software” means the software (including all Updates and Upgrades) provided by the Licensor via the internet or other network, as described in the relevant Documentation;

“Software Defect” means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

• any act or omission of the User;
• any use of the Software contrary to the Documentation by the User;
• a failure of the User to perform or observe any of its obligations in this EULA; and/or
• in incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;

“Software Specification” means the specification for the Software set out in the Documentation, as may be delivered or made available by the Customer to the User from time to time;

“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;

“Update” means a hotfix, patch or minor version update to the Software;

“Upgrade” means a major version upgrade of the Software;

“Virus” means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and

“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

• Licence

1. 1. Subject to the limitations and prohibitions set out in this EULA, in consideration of the User agreeing to abide by the terms of this EULA the Licensor hereby grants to the User a limited, non-exclusive, non-transferable, non-sub-licensable, revocable licence to access and use the Software in the Territory in connection with the Customer’s internal business purposes only.
   2. 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 2 shall be subject to the following prohibitions:
      1. the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software or Documentation, or use the same to provide services to third parties;
      2. the User must not copy, modify, create derivative works from, alter, edit, adapt or correct errors in relation to the Software or Documentation;
      3. the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software or Documentation; and
      4. the User must not access or use the Software or Documentation, or permit it to be accessed or used, by or on behalf of any third party, otherwise than for the purposes set in Clause 2.1.
   3. The User shall:
      1. keep a secure password for its use of the Software and Documentation, and ensure that such password is changed no less frequently than every six (6) months and is kept confidential;
      2. notify the Licensor immediately upon becoming aware of any actual or suspected unauthorised use of the Software;
      3. comply with all applicable laws and regulations with respect to its activities under this EULA;
      4. ensure that its network and systems comply with the relevant specifications provided by the Licensor from time to time; and
      5. be solely responsible for the legality, reliability, integrity, accuracy and quality of all data inputted by it for the purpose of using the Software.
   4. The User shall not use the Software to:
      1. distribute or transmit to the Licensor any Viruses or Vulnerability and shall implement procedures in line with good industry practice to prevent such distribution or transmission;
      2. store, access, publish, disseminate, distribute or transmit any material which: 
         1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
         2. facilitates illegal activity;
         3. depicts sexually explicit images;
         4. promotes unlawful violence;
         5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
         6. is otherwise illegal or causes damage or injury to any person or property,

and the Licensor reserves the right to disable the User’s access to Software and Documentation for the duration of time that the breach remains unremedied.

• Source Code

1. 1. 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.

• Intellectual Property Rights

1. 1. 1. The User acknowledges and agrees that all Intellectual Property Rights in the Software and Documentation belongs to the Licensor. 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.

• Warranties

1. 1. 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.
      2. The Licensor warrants to the User that the Software as provided will, when properly used and on an operating system for which it was designed, conform in all material respects with the Software Specification for a period of twelve (12) months following supply of the Software or for the duration of the contract between the Licensor and the Customer, whichever is shorter.
      3. In the event that there is a breach of Clause 5.2 occurring within the period specified in such Clause 5.2, provided the User notifies the Licensor in writing without delay of the relevant defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Software Specification, the Licensor shall, at its sole option, either repair or replace the Software, provided that the User makes available all the information that may be necessary to help the Licensor to remedy the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault. 
      4. The warranty in Clause 5.2 does not apply if the defect or fault in the Software results from the User having used the Software or Documentation in breach of the terms of this EULA.
      5. If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person’s Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:
         1. modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or
         2. procure for the User the right to use the Software in accordance with this EULA.
      6. 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.
      7. All of the parties’ obligations and liabilities 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 condition, warranty, representation or other term concerning the subject matter of this EULA will be implied into this EULA or any related contract.

• Acknowledgements and warranty limitations

1. 1. 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.
      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.
      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.
      4. The User acknowledges that the Licensor 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 Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User any other person.
      5. The User accepts responsibility for the selection of the Software to achieve its intended results and acknowledge that the Software and Documentation have not been developed or designed to meet or support any individual requirements it has, including any particular cybersecurity requirements it might be subject to, or any regulated activity that the User may be engaged in (each a “Regulated Activity“). If the User uses the Software for any Regulated Activity it agrees to comply with any requirements that apply to such Regulated Activity from time to time (including in any jurisdiction in which it operates or where the Regulated Activity is undertaken).

• Limitations and exclusions of liability

1. 1. Nothing in this EULA will:
      1. limit or exclude any liability for death or personal injury resulting from negligence;
      2. limit or exclude any liability for fraud or fraudulent misrepresentation;
      3. limit any liabilities in any way that is not permitted under applicable law; or
      4. exclude any liabilities that may not be excluded under applicable law.
   2. The limitations and exclusions of liability set out in this Clause 7 and elsewhere in this EULA: 
      1. are subject to Clause 7.1; and
      2. 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.
   3. The Licensor will not be liable to the User in respect of any: 
      1. losses arising out of a Force Majeure Event;
      2. loss of profits or anticipated savings;
      3. of revenue or income;
      4. loss of business, contracts or opportunities;
      5. wasted expenditure;
      6. loss or corruption of any data, database or software; or
      7. special, indirect or consequential loss or damage.

The total aggregate liability of the Licensor to the User under this EULA shall not exceed one thousand pounds (£1,000). 

• Termination

The Licensor may terminate this EULA immediately without notice.

1. This EULA shall automatically terminate without notice in the event of the terminate or expiry of the agreement governing the Customer’s use of the Software.
2. Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
   1. the other party commits any material breach of this EULA, and the breach is not remediable;
   2. the other party commits a material breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of thirty (30) days following the giving of a written notice to the other party requiring the breach to be remedied; or
   3. the other party persistently breaches this EULA irrespective of whether such breaches collectively constitute a material breach.
3. Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
   1. the other party:
      1. is dissolved;
      2. ceases to conduct all (or substantially all) of its business;
      3. is or becomes unable to pay its debts as they fall due;
      4. is or becomes insolvent or is declared insolvent; or
      5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
   2. that other party is an individual and:
      1. that other party dies;
      2. that other party ceases to be employed or engaged by the Customer;
      3. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
      4. that other party is the subject of a bankruptcy petition or order.
   3. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
   4. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA).

• Effects of termination

1. 1. 1. Upon the termination of this EULA, the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
      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.
      3. For the avoidance of doubt, the licences of the Software and Documentation in this EULA shall terminate upon the termination of this EULA; and, accordingly, the User must immediately cease to use the Software and Documentation upon the termination of this EULA.
      4. Within ten (10) Business Days following the termination of this EULA, the User must:
         1. return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software and / or Documentation; and
         2. irrevocably delete from all computer systems in its possession or control all copies of the Software and / or Documentation.

• Communications & variations

1. 1. 1. The Licensor may update the terms of this EULA at any time on notice to the User in accordance with this Clause 10. The User’s continued use of the Software and Documentation following the deemed receipt and service of the notice under Clause 10.3 shall constitute the User’s acceptance to the terms of this EULA, as varied. If the User does not wish to accept the terms of the EULA (as varied) it must immediately stop using and accessing the Software and Documentation on the deemed receipt and service of the notice.
      2. If the Licensor has to contact the User, the Licensor will do so either directly by email or through the Customer.
      3. Any notice:
         1. given by the Licensor to the User will be deemed received and properly served 24 hours after it is first posted on our website, 24 hours after an email is sent, or three (3) days after the date of posting of any letter; and
         2. given by the User to the Licensor will be deemed received and properly served 24 hours after an email is sent, or three (3) days after the date of posting of any letter.
      4. In proving the service of any notice, it will be sufficient to prove, in the case of posting on the Licensor’s website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.

• General

1. 1. 1. No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
      2. Under data protection legislation, the Licensor is required to provide individuals with certain information about who it is, how it processes the personal data of those individuals who use the Software and the Documentation and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided at https://visionable.com/privacy-policy/  (Privacy Notice).
      3. 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).
      4. The User hereby agrees that the Licensor may assign or otherwise transfer the Licensor’s contractual rights and obligations under this EULA to any third party. 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.
      5. This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
      6. The User acknowledges that entering into this EULA it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA  or any document expressly referred to in it. The User agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this EULA or any document expressly referred to in it.
      7. This EULA shall be governed by and construed in accordance with English law.
      8. The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

• Interpretation

1. 1. In this EULA, a reference to a statute or statutory provision includes a reference to: 
      1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
      2. any subordinate legislation made under that statute or statutory provision.
   2. The Clause headings do not affect the interpretation of this EULA.
   3. 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.
   4. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.