CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. YOU ARE LICENSED TO DOWNLOAD AND USE THE PROVIDED SOFTWARE ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS SET OUT BELOW.
BY CLICKING "I AGREE" WHEN YOU FIRST INSTALL THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THIS LICENCE AGREEMENT AND THE LIMITED WARRANTY AND LIMITATION OF LIABILITY SET OUT HEREIN. SUCH ACCEPTANCE IS EITHER ON YOUR OWN BEHALF OR ON BEHALF OF ANY CORPORATE ENTITY WHICH EMPLOYS YOU OR WHICH YOU REPRESENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT YOU SHOULD CLICK THE "CANCEL" BUTTON AND NOT DOWNLOAD NOR USE THE SOFTWARE.
1.1 Except to the extent expressly provided otherwise, in this EULA:
"Data" means collectively all information that you submit to www.ultwin.com. This includes, but is not limited to, account details and information submitted using any of the Services or Systems provided by the Licensor;
"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;
"EULA" means this end user licence agreement, including any amendments to this end user licence agreement from time to time;
"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;
"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 Ultwin Ltd, a company incorporated in England and Wales (registration number 09750491) having its registered office at Rudyard Manor, Rudyard, Staffordshire, England, United Kingdom, ST13 8PN;
"Service" means collectively any facilities, tools, services or information that the Licensor makes available through www.ultwin.com either now or in the future;
(a) all of the contents of the files (delivered electronically or on physical media including disks of other media) with which this agreement is provided, which includes but not limited to:
(i) UltWin (the UltWin window management system);
(ii) documentation; and
(b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by the Licensor.
"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:
(a) any act or omission of the User;
(b) any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;
(c) a failure of the User to perform or observe any of its obligations in this EULA; and/or
(d) an 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;
"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;
"System" means any online communications infrastructure that the Licensor makes available through the www.ultwin.com either now or in the future. This includes, but is not limited to, web-based email, message boards and email links;
"Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Update" means a hotfix, patch or minor version update to the Software;
"Upgrade" means a major version upgrade of the Software;
"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.
2.1 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.
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;
(b) use the Software in accordance with the Documentation;
(c) use the Software in accordance with this EULA; and
(d) create, store and maintain up to 1 back-up copy of the Software;
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 without the prior written consent of the Licensor.
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;
(c) the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software;
3.4 The User shall be responsible for the security of copies of the Software supplied to the User under this EULA (or created from such copies) and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.
4.1 The Software is protected by copyright law of the UK and international treaty provisions. You acknowledge that no title to the intellectual property in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software belongs to or has been licensed by the Licensor and you will not acquire any rights to the Software except as expressly set forth in this EULA. You agree that any copies of the Software will contain the same proprietary notices which appear on and in the Software.
5. Source Code
5.1 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.
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.
7.1 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 the EULA.
7.2 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 the EULA or any related contract.
8. Acknowledgements and warranty limitations
8.1 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.
8.2 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.
8.3 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.
8.4 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 or any other person.
9.1 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").
10. Limitations and exclusions of liability
10.1 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,
(e) and, if a party is a consumer, that party's statutory rights will not be excluded or limited by the EULA, except to the extent permitted by law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in this EULA:
(a) are subject to Clauses 10.1 and 13.6; and
(b) govern all liabilities arising under the EULA or relating to the subject matter of the EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the EULA.
10.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.
10.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.
10.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.
10.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.
10.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.
10.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.
10.9 In the event that the Licensor incurs any liability of any kind, that liability shall be limited to the licence fee paid by the User for the Software.
11.1 The Licensor may terminate this EULA by giving to the User not less than 30 days' written notice of termination.
12. Effects of termination
12.1 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, 3.2 to 3.4, 9, 10, 12 and 15.
12.2 The termination of this EULA shall not affect the accrued rights of either party.
12.4 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.
12.5 Within 10 Business Days following the termination of this EULA, the User must:
(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b) irrevocably delete from all computer systems in its possession or control all copies of the Software.
13.1 No breach of any provision of this EULA shall be waived except with the express written consent of the Licensor.
13.2 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 the EULA will continue in effect.
13.3 This EULA may not be varied except by a written document signed by or on behalf of the Licensor.
13.4 The User may not assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this EULA without the prior written consent of the Licensor.
13.5 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.
13.6 Nothing in this EULA shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.
13.7 Subject to Clauses 10.1 and 13.6, 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.
13.8 This EULA shall be governed by and construed in accordance with English law.
13.9 The courts of England and Wales shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
(a) Name (voluntarily submitted); and
(b) Contact information such as email address (voluntarily submitted); and
(c) Any other information that is voluntarily submitted; and
(d) IP address (automatically collected by the web server); and
(e) Web browser type and version (automatically collected by the web server); and
(f) Operating system (automatically collected by the web server); and
(g) A list of URLS starting with a referring site, your activity on www.ultwin.com, and the site you exit to (automatically collected by the web server); and
(h) Any other information that is automatically collected by the web server.
The web server used is the Apache HTTP Server. Details of the Apache HTTP Server and how it collects information can be found at www.apache.org.
14.2 Unless the Licensor is obliged by law to do so, and subject to Clause 14.5, your Data will not be disclosed to third parties.
14.3 All personal Data is stored securely in accordance with the principles of the Data Protection Act 1998.
14.4 Any or all of the above Data may be required by the Licensor from time to time in order to provide you with the best possible service and experience when using www.ultwin.com. Specifically, Data may be used by us for the following reasons:
(a) Internal record keeping; and
(b) Improvement to the products / services provided by the Licensor.
14.5 The Licensor may, from time to time, expand or reduce its business and this may involve the sale of certain divisions or the transfer of control of certain divisions to other parties. Data provided by Users will, where it is relevant to any division so transferred, be transferred along with that division and the new owner or newly controlling party will, under the terms of this policy, be permitted to use the Data for the purposes for which it was supplied by you.
14.6 You have the right to ask for a copy of your personal Data on payment of a small fee.
15.1 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.
15.2 The Clause headings do not affect the interpretation of this EULA.
15.3 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.