Terms and Conditions
Your right to use the software product and its associated documentation is subject to the terms set out in this licence agreement (Agreement). Accessing the Program signifies your acceptance of the terms and conditions set out below. Therefore, please read them carefully before using the software. If you do not agree to be bound by the terms and conditions of this Agreement, you should proceed no further and remove the installation.
1. Program and Grant of Licence
The “Program” means the licensed software and operational literature stored on the files supplied. Under copyright law you are prohibited from installing or running the software without the consent of Eureka Solutions (Scotland) Ltd (ES). In consideration of your agreement to the terms of this Licence, ES grants you, the purchaser of the software, a non-exclusive right (the “Licence”) to install and run the software as permitted by this Agreement. The Licence is personal to you, and may not be assigned, sold or transferred in any other way without ES’s express prior consent in writing.
- Under the terms of this licence YOU ARE PERMITTED TO:
- use the Program in connection with a single personal computer including a lap-top or, where you have purchased a network version, on a single network which is under your control. If you wish to use the Program on more than one computer or network, you must obtain a separate licence for another copy of the Program;
- load the software and use it in connection with a single set of data only at any one time whether this is for a company, partnership, group, person or otherwise unless you have purchased a licence to allow you to work with multiple sets of data;
- transfer the software from one computer to another owned by you within a single location, provided that it is installed and used on only one computer at a time.
- make one copy of the software for back-up purposes in support of your permitted use of the software, provided that you label the back-up copy with a notice drawing attention to ES’s copyright in the software. Any other copies of the software, whether as a whole or in part, made without the prior written consent of ES, are unlawful and a breach of this Agreement.
- YOU MAY NOT YOURSELF, NOR MAY YOU PERMIT OTHERS TO:
- transfer or part with possession of the Program or seek to sub-license or assign the licence or your rights under it;
- use, copy or transfer the software or other component parts of the Program except as allowed for by this Agreement;
- distribute, rent, loan, lease, sub-license or otherwise deal in the software and or any other component elements of the Program;
- alter, adapt, merge, modify or translate the software or other component elements of the Program in any way, or for any purpose, other than with the prior written consent of ES;
- reverse engineer, disassemble or de-compile the software otherwise than with the prior written consent of ES;
- remove, change or obscure any identification marks or notices of proprietary rights and restrictions on or in the software and any other component elements of the Program.
- ES may, at its sole and absolute discretion, terminate the licence, in which event it will refund to you the purchase price of the Program.
- The licence may be terminated by ES without refund if you fail to make payment after seven days’ notice of any sums due to ES under this or any other contract with ES.
- Within 14 days of termination of this Licence, you will return the original, as well as all copies or part copies of the Program, or will furnish to ES a letter attesting to the destruction of the original and any such copies. You may terminate this Licence at any time by returning all copies or furnishing such confirmation.
- The software is supplied on an annual licence basis with payment of annual licence. An annual licence key will be issued on receipt of annual payment
- Your rights to use the Program will terminate automatically if you fail to comply with any term of this Licence. This Agreement will also terminate without further action or notice by ES if you become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative receiver or other receiver appointed, or if you suffer or file any similar action in consequence of debt. Any use of any copies of the Program after termination of the Licence is unlawful.
As the owner of the Licence copyright, ES warrants to you only that:
- the software, when used properly, will provide the functions and facilities and will perform substantially as described in the User Manual supplied with the software;
- the medium on which the software is recorded will be free from defects in material and workmanship under normal conditions of use. This warranty is given for the duration of one year and runs from the date on which you register the Licence. Registration of the Licence may be effected by telephoning ES to obtain the required activation key. Upon receipt of the Program, it must immediately be backed-up in accordance with Clause 1 (a) (iv) of this Licence and in accordance with instructions contained on relevant documentation accompanying the Program.
- during the Software Maintenance Contract period, ES will provide technical advice, assistance and support by telephone during normal business hours and/or will replace any Program not meeting the guarantee given above. In the event of any errors in the Program, ES may, at its sole discretion, correct the same by “patching” or by replacing the Program with a new version. Should ES be unable to rectify any defect in the Program, it will terminate this Licence by refunding your purchase price, together with the cost of postage, after having received the Program and any copy thereof from you in accordance with the preamble to this Agreement. ES does not warrant or guarantee that you will have uninterrupted or error free service from the Program. ES’s entire liability and your exclusive remedy under the warranties given in this section 3 will be, at ES’s option either, (i) to repair or replace the software or encryption medium which does not conform with the warranty or, (ii) to refund the price paid for the software and terminate the Licence. This guarantee excludes defects caused by accidents, abuse, poor storage or handling, or any act referred to in sub-clauses 1(b) (iv) and (v) above. It is subject also to the product being returned in good condition within the warranty period applicable to it.
4. Exclusion of Other Warranties
Except for the express warranties contained in Section 3 above, ES gives and you receive no other warranties, conditions or representations, express or implied, statutory or otherwise. Without limitation, the implied terms of quality and fitness for a particular purpose are excluded. ES does not warrant that the operation of the software will be error free or uninterrupted. It is your exclusive responsibility to ensure that the Program is suitable for your needs and the entire risk as to its performance and as to results obtained from its use is assumed by you. You hereby acknowledge that the content and accuracy of documents produced by the Program are your sole responsibility and, whether or not produced using the software, that you also remain responsible for ensuring that any information, opinions, recommendations, forecasts or other comments submitted to third parties are accurate and complete.
5. Disclaimer and Limitation of Liability
You hereby acknowledge that the allocation of risk in this Agreement reflects the price paid for the Program and also the fact that it is not within ES’s control how, and for what purposes, the Program is used by you. In no event, therefore, will ES be liable for any direct, consequential, incidental or special damage or loss of any kind (including, but not confined to, loss of profits, loss of contracts, business interruptions, loss of or corruption to data) however caused and whether arising under contract or tort, including negligence or otherwise. If any exclusion, disclaimer or other provision contained in this Licence is held to be invalid for any reason by a court of competent jurisdiction and ES becomes liable thereby for loss or damage that could otherwise be limited, such liability whether in contract, tort or otherwise, will not exceed the amount actually paid by you for the software. ES does not exclude or limit its liability for death or personal injury resulting from any act or negligence perpetrated by it.
6. Personal Data
- The following definitions will apply in this clause 6.
Data Breach means: (i) any unauthorised loss, corruption, damage, destruction, alteration, disclosure or access to any Personal Information; (ii) any unauthorised or unlawful Processing of Personal Information; or (iii) any breach of Data Privacy Laws
Data Controller has the meaning given to “Controller” under the General Data Protection Regulation (EU 2016/679)
Data Privacy Laws means all laws in any relevant jurisdiction that relate to data protection, privacy, the use of information relating to individuals, and/or the information rights of individual including, without limitation, the General Data Protection Regulation (EU 2016/679), and the equivalent in any other relevant jurisdictions all as amended or replaced from time to time
Data Processor has the meaning given to “Processor” under the General Data Protection Regulation (EU 2016/679)
Data Subject has the meaning given under the General Data Protection Regulation (EU 2016/679)
EEA means the member states of the European Union, Norway, Iceland, Liechtenstein and the United Kingdom
ICO means the UK Information Commissioner’s Office, or the equivalent national data protection authority in any relevant jurisdiction
Personal Information means any information which: i) falls within the definition of “Personal Data” under the General Data Protection Regulation (EU 2016/679); and ii) in relation to which ES is providing the Services or which ES is required to Process (subject to the Data Privacy Laws) in connection with this agreement or any Project Plan
Processing has the meaning given under the General Data Protection Regulation (EU 2016/679) (and Process, Processed and Processes shall be construed accordingly)
- The provision of the Services may require ES to Process Personal Information for and on your behalf. In respect of such Processing, the parties acknowledge and agree that:
- you shall be the Data Controller and ES shall be the Data Processor;
- you shall be solely responsible for determining the purpose(s) for which and the manner in which the Personal Information will be Processed by ES; and
- clauses (c) to (g) below shall apply.
- You shall:
- comply with all Data Privacy Laws;
- obtain and maintain all relevant registrations (and similar) required by Data Privacy Laws; and
- ensure that all instructions that it issues to ES comply with Data Privacy Laws.
- When Processing Personal Information as part of the delivery of the Services, ES shall:
- Process the Personal Information only on your documented instructions, except to the extent that any Processing of Personal Information is required by Applicable Laws;
- where Processing of Personal Information by ES is required by Applicable Laws, ES shall inform you of the relevant legal requirement before processing, unless such law prohibits ES from doing so;
- notify you where ES reasonably believes any of your documented instructions in respect of the Processing of Personal Information infringe any Data Privacy Laws or any other Applicable Laws;
- ensure that its personnel who are authorised to Process the Personal Information have committed themselves to confidentiality;
- implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing;
- only appoint a third party to Process Personal Information on its behalf in accordance with clauses (e) and (f) below;
- taking into account the nature of the Processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights under Data Privacy Laws;
- notify you without undue delay after becoming aware of a Data Breach;
- assist you or your compliance with its obligations under Data Privacy Laws in respect of notifying Data Breaches to the ICO and affected Data Subjects, insofar as it is able taking into account the nature of the Processing and the information available to ES;
- at your discretion, delete or return to you all of the Personal Information Processed under the applicable Project Plan on completion of the applicable Project Plan, and delete any copies of such Personal Information unless any Applicable Laws require that copies are kept; and
- make available to you all information necessary to demonstrate compliance with its obligations in this clause (d).
- ES shall not sub-contract its Processing of Personal Information to a third party without your prior specific or general written authorisation (not to be unreasonably withheld, conditioned or delayed). Where any sub-contracting of Processing of Personal Information is based on your general written authorisation, ES shall inform you of any intended changes concerning the addition or replacement of any sub-contractors and you shall notify ES of any objections it has to any such changes in writing within five (5) Business Days, after which any such changes which you have not objected to in accordance with this clause (e) shall be deemed to be accepted.
- Where ES sub-contracts its Processing of Personal Information to a third party in accordance with clause (e) above, ES shall:
- ensure that any such third party is subject to the same data protection obligations as those set out in clause (d) above;
- obtain sufficient guarantees from any such third party that they will implement appropriate technical and organisational measures in such a manner that the Processing of Personal Information by such third party will meet the requirements of Data Privacy Laws; and
- remain liable to you for any Processing of Personal Information by any such third party.
- Each party shall co-operate with the ICO on the request of the other party in respect of the performance of its tasks under this agreement and any Project Plan.
- ES shall not transfer Personal Information to any country outside the EEA or the UK without your prior written consent, such consent may be subject to and given on such terms as you may in your discretion prescribe (acting reasonably and in compliance with Data Privacy Laws).
- In the event that you consent to the transfer of Personal Data from ES to a country outside of the EEA or the UK under clause (h), ES shall confirm in writing details of how ES will ensure an adequate level of protection and adequate safeguards in respect of the Personal Information that will be processed in and/or transferred outside of the EEA so as to ensure compliance with the Data Privacy Laws.
- Any reseller, distributor or dealer (including any ES approved dealer) from whom you may have purchased the Program is expressly not appointed or authorised by ES as its servant or agent. No such person has any authority, either express or implied, to enter into any contract or provide any representation, warranty or guarantee with or to you on behalf of ES or otherwise to bind ES in any way whatsoever. ES will not be responsible for any modifications or mergers made to the Program by such persons.
- ES shall not be liable to you in respect of circumstances outside its reasonable control.
- Failure by ES to enforce any particular term of this Licence shall not be construed as a waiver of any of its rights under it.
- If any part of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason whatsoever, the validity of the remainder of terms will not be affected.
- This Licence constitutes the entire agreement between the parties in relation to the Program and its licensing and supersedes any other oral or written communications, agreements or representations with respect to the Program.
- The terms and conditions of this Licence will be governed and construed in accordance with Scottish law, and any dispute arising under this Agreement or in connection with the Program shall be submitted to the exclusive jurisdiction of the Scottish Courts, save where ES otherwise agrees. No variation, amendment of or addition to this Licence shall be effective unless ES’s prior agreement in writing shall have been obtained.
Should you have any questions concerning this Licence, please contact Eureka Solutions using the information below.