END USER LICENCE AGREEMENT FOR THE ONTRACK SOLUTION

 

BACKGROUND

(A) This end-user licence agreement (“EULA“) is a legal agreement between you (the “User“) and Ontrack Management Solutions Limited (“Ontrack“) governing your licence and use of:

(i) the software applications “Ontrack Mobile iOS” and the “Ontrack Lite” viewer app (including all versions and releases of the Apps for any operating system, platform or device) (together the “Apps”);

(ii) the web-based application services “Ontrack 2” provided by Ontrack, via http://ontrackms.com/ or via any other website from time to time including “Ontrack Lite” via http://lite.ontrackms.com/ (the “Service“);

(iii) printed text, online text, images, videos, audio files, data files, animations and text including technical documentation, program specifications and operations manuals owned by OMS or any relevant licensors that appear in or are provided by OMS in relation to the Apps or Service (the “Content“); and

(iv) any printed or electronic materials and documentation provided by Ontrack in relation to the App or the Service (the “Documentation“) The Apps, Service, Content and Documentation shall be referred to collectively as the “Ontrack Solution“.

(B) By:

(i) downloading, installing or using the Apps;

(ii) using the Service, Content or Documentation; or

(iii) clicking on the “Accept” button below (if applicable), you agree to the terms of this EULA.

(C) If you do not agree to the terms of this EULA, you will not be permitted to use the Ontrack Solution or any part of it.

1. TERMS AND ACKNOWLEDGMENTS

1.1 Ontrack may change these terms at any time and may notify the User of a change in accordance with clause 9 or otherwise when the User next starts the Apps or uses the Service. The new terms may be displayed on-screen and the User may be required to read and accept them to continue its use of the Apps or the Service.

1.2 From time to time, updates to the Apps may be issued by Ontrack. Depending on the update, the User may not be able to use the Apps or the Service until the User has downloaded and installed the latest version of the Apps and accepted any new terms.

1.3 The User will be assumed to have obtained permission from the owners of any mobile telephone or handheld device on which the Apps or the Service is to be used (“Device“) to use such Device and to download and use the Apps or the Service on such Device. The User and such owners may be charged by their service providers for internet access via the Device.

1.4 The User acknowledges that the provision of the Apps and the Service by Ontrack, and/or the use by the User of the Apps or the Service on any Device, may be subject to terms and conditions imposed by third parties including network, Device and operating system providers (“Third Party Terms“). The User will comply with any Third Party Terms applicable to its use of the Apps, Service or any Device.

1.5 The terms of Ontrack’s privacy policy from time to time, available at (“Privacy Policy“) are incorporated into this EULA by reference and apply to the Ontrack Solution. Additionally, by using the Ontrack Solution or any part of it, the User acknowledges and agrees that Internet transmissions are never completely private or secure. The User understands that any message or information the User sends using the Apps or the Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

1.6 By using the Ontrack Solution or any part of it, the User consents to Ontrack collecting and using technical information about the Devices and related software, hardware and peripherals for services that are Internet-based or wireless to improve Ontrack’s products and to provide the Ontrack Solution to the User

1.7 The Ontrack Solution may make use of location data sent from Devices. The User can turn off this functionality at any time by turning off the location services settings for the Apps on the Device. If the User uses the Ontrack Solution or any part of it, the User consents to Ontrack and Ontrack’s affiliates’ and licensees’ transmission, collection, maintenance, processing and use of its location data and queries to provide the Ontrack Solution. The User may withdraw this consent at any time by turning off the location services settings.

1.8 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.

2. GRANT AND SCOPE OF LICENCE

In consideration of the User agreeing to abide by the terms of this EULA, Ontrack grants the User a non-transferable, non-exclusive licence, which shall not be capable of sub-licence, to:

2.1 download, install and use the Apps on a single Device subject to this EULA;

2.2 receive and use any free supplementary software code or update of the Apps incorporating “patches” and corrections of errors as may be provided by Ontrack from time to time;

2.3 access the Service; and

2.4 download, view and use the Documentation,

3. LICENCE RESTRICTIONS

3.1 Except as expressly set out in this EULA or as permitted by law, the User agrees not to:

3.1.1 copy the Ontrack Solution or any part of it;

3.1.2 use the Ontrack Solution or any part of it to provide services to third parties;

3.1.3 rent, lease, sub-license, loan, distribute, display, disclose, or otherwise commercially exploit the Ontrack Solution or any part of it, or otherwise make them available in whole or in part to any third party;

3.1.4 make alterations to, or modifications of, the whole or any part of the Ontrack Solution or any part of it, or permit the Apps, Services or any part of them to be combined with, or become incorporated in, any other programs; or

3.1.5 disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Ontrack Solution or any part of it or attempt to do any such thing.

3.2 The User shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Ontrack Solution and, in the event of any such unauthorised access or use, shall promptly notify Ontrack.

4. ACCEPTABLE USE RESTRICTIONS

The User must not:

4.1 use the Ontrack Solution or any part of it in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;

4.2 infringe Ontrack’s intellectual property rights or those of any third party in relation to its use of the Ontrack Solution or any part of it;

4.3 transmit any material that is defamatory, offensive or otherwise objectionable in relation to its use of the Ontrack Solution or any part of it;

4.4 use the Ontrack Solution or any part of it in a way that could damage, disable, overburden, impair or compromise Ontrack’s systems or security or interfere with other users; or

4.5 collect or harvest any information or data from the Apps, Service or Ontrack’s systems or attempt to decipher any transmissions to or from the servers running the Apps, or Service.

5. USE OF THE SERVICE

5.1 The User undertakes that the User shall keep a secure password for the User’s use of the Ontrack Solution, that such password shall be changed in accordance with Ontrack’s instructions and that the User shall keep such password confidential. The User confirms that it will not disclose or allow any third party to access, and will keep strictly confidential:

5.1.1 the User’s password, profile and login details; and

5.1.2 the details, including profile details, of any digital certificate or digital passes issued to the User by Ontrack or any other person; in connection with the User’s use of the Ontrack Solution or any part of it.

5.2 The User shall:

5.2.1 provide Ontrack with:
(a) all necessary co-operation in relation to this EULA; and
(b) all necessary access to such information as may be required by Ontrack,
in order to provide the Ontrack Solution, including customer data, security access information and configuration services;

5.2.2 comply with all applicable laws and regulations with respect to its activities under this EULA;

5.2.3 ensure that its Device, network and systems comply with the relevant specifications provided by Ontrack from time to time; and

5.2.4 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems or Device to Ontrack’s data centres, and for all problems, clauses, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet.

5.3 Ontrack shall own all rights, title and interest in and to all data and materials (including photographs) created in the course of the User’s use of the Ontrack Solution or any part of it, and the User hereby assigns and agrees to assign all rights in such data and materials to Ontrack. If the User is not the owner of any such data and materials, it shall instead procure that the relevant owner assigns all rights in such data and materials to Ontrack.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 The User acknowledges that all intellectual property rights in the Ontrack Solution, anywhere in the world belong to Ontrack or Ontrack’s licensors, that rights in the Ontrack Solution are licensed (not sold) to the User, and that the User has no rights in, or to, the Ontrack Solution other than the right to use each of them in accordance with the terms of this EULA. Except as expressly stated, this EULA does not grant the User any rights to, or in, any intellectual property rights or any other rights or licences in respect of the Ontrack Solution or any part of it.

6.2 The User acknowledges that the User has no right to have access to the App in source-code form.

6.3 The integrity of the Apps and the Service may be protected by technical protection measures (“TPM”) so that the intellectual property rights, including copyright, in the Apps and the Service are not misappropriated. The User must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in its possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.

7. LIMITATION OF LIABILITY AND INDEMNITY

7.1 The User acknowledges that the Ontrack Solution is provided “as is”. Ontrack does not warrant that the User’s use of the Ontrack Solution or any part of it will be uninterrupted or error-free, nor that the Ontrack Solution and/or information obtained by the User through the Ontrack Solution will meet the User’s requirements.

7.2 The User acknowledges that the Apps and the Service have not been developed to meet its individual requirements, and that it is therefore its responsibility to ensure that the facilities and functions of the Apps and Service as described in the Documentation meet its requirements.

7.3 The User acknowledges that the Apps may not be free of bugs and agrees that the existence of minor errors will not constitute a breach of this EULA.

7.4 Ontrack shall not under any circumstances whatever be liable to the User, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the EULA for:

7.4.1 loss of profits, sales, business, or revenue;

7.4.2 any fines, penalties, or sanctions issued by any regulatory authorities responsible for the supervision of the User or its respective business activities from time to time including any government or government organisations;

7.4.3 business interruption;

7.4.4 loss of anticipated savings;

7.4.5 loss or corruption of data or information;

7.4.6 loss of business opportunity, goodwill or reputation; or

7.4.7 any indirect or consequential loss or damage.

7.5 Other than the losses set out in clause 7.4 (for which Ontrack is not liable), Ontrack’s maximum aggregate liability under or in connection with this EULA whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to fifty pounds sterling (£50). This maximum cap does not apply to clause 7.6.

7.6 Nothing in this EULA shall limit or exclude Ontrack’s liability for any liability that cannot be excluded or limited by English law.

7.7 This EULA sets out the full extent of Ontrack’s obligations and liabilities in respect of the supply of the Ontrack Solution. Except as expressly stated in this EULA, there are no clauses, warranties, representations or other terms, express or implied, that are binding on Ontrack. Any clause, warranty, representation or other term concerning the supply of the Ontrack Solution which might otherwise be implied into, or incorporated in, this EULA whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

7.8 The User shall defend, indemnify and hold harmless Ontrack against all losses, liabilities, damages, costs, claims and expenses howsoever arising (including reasonable legal fees on a solicitor and own client basis and other professional advisors’ fees, and disbursements and costs of investigation, litigation, settlement, judgment, interest, penalties and remedial actions) arising out of or in connection with the User’s use of the Ontrack Solution or any part of it.

8. TERMINATION

8.1 Ontrack may terminate this EULA immediately by written notice to the User if the User commits a material or persistent breach of this EULA which the User fails to remedy (if remediable) within 14 days after the service of written notice requiring the User to do so.

8.2 Ontrack may terminate this EULA immediately by written notice to the User if Ontrack determines (in its absolute discretion) that the continuance of this EULA or any action or omission of the User has given rise to or is likely to give rise to any contravention of any Third Party Terms.

8.3 Upon termination for any reason:

8.3.1 all rights granted to the User under this EULA shall cease;

8.3.2 the User must cease all activities authorised by this EULA;

8.3.3 the User must immediately delete or remove the Apps from all Devices in its possession and immediately destroy or return to Ontrack (at Ontrack’s option) all copies of the Apps and Documentation then in its possession, custody or control and, in the case of destruction, certify to Ontrack that the User has done so.

9. NOTICE

9.1 If any clause in this EULA requires the User to give Ontrack notice in writing, the User can send this to Ontrack by email to info@ontrackms.com or by pre-paid post to Ontrack Management Solutions Ltd at 12 Priestley Way, London NW2 7AP. Ontrack will confirm receipt of this by contacting the User in writing, normally by email.

9.2 If Ontrack has to contact the User or give the User notice in writing, Ontrack will do so by email or by pre-paid post to such address as the User provides to Ontrack from time to time.

9.3 Any notice given by the User to Ontrack, or by Ontrack to the User, will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove (in the case of a letter) that such letter was properly addressed, stamped and placed in the post and, (in the case of an email) that such email was sent to the specified email address of the addressee.

10. GENERAL

10.1 Ontrack may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this EULA. The User may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this EULA.

10.2 No person who is not a party to this EULA shall have any rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

10.3 No delay by either party in enforcing its rights will limit or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

10.4 If any provision of this EULA (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain unaffected and in force.

10.5 This EULA contains the whole agreement between the parties in respect of its subject matter and supersedes any prior written or oral agreement between them, and the parties confirm that they have not entered into this EULA on the basis of any representations that are not expressly incorporated in this agreement. Nothing in this EULA will operate to limit or exclude any liability for fraud.

10.6 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

10.7 Each of the clauses of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.

10.8 This EULA, its subject matter and its formation (and any non-contractual disputes or claims relating to this EULA) are governed by English law. The parties both agree to the exclusive jurisdiction of the courts of England and Wales.

The User should print a copy of this EULA for future reference.

Ontrack EULA, Version 4, October 2016