Excel Addin End-User Licence Agreement (EULA)
HUB85 SOFTWARE EXCEL ADDIN TERMS
These are the terms under which HUB85 LIMITED, a company incorporated in England and Wales under number 10731494 whose registered office is at Devonshire House, Manor Way, Borehamwood, Hertfordshire, WD6 1QQ (“Hub85”) offers to supply and licence for download Workscope’s Excel Addin to those signing up to these terms (“Customer”);
1. Definitions and interpretation
1.1 In this Agreement:
|Agreement||means the agreement between Customer and Hub85 entered into by purchasing or downloading the addin from workscope.com or any other website Hub85 make the software available from.|
|Business Day||means a day other than a Saturday, Sunday or bank or public holiday in England;|
|Confidential Information||means all information (whether in oral, written or electronic form) relating to a party’s business which may reasonably be considered to be confidential in nature including information relating to that party’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers. All information relating to the Software, the Knoweldgebase, the Description and any other technical or operational specifications or data relating to the Software shall be part of Hub85’s Confidential Information;|
|Duration||means the duration of this Agreement;|
|Free Version||means an option selectable by The Customer, described as a “free” version in Hub85’s advertising.|
|Intellectual Property Rights||means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not,
(b) including any applications to protect or register such rights,
(c) including all renewals and extensions of such rights or applications,
(d) whether vested, contingent or future, and
(e) wherever existing;
|Knowledgebase||means the online documentation available at addin.workscope.com|
|Licence Fee||means the fees payable by the Customer as specified by Hub85 at the time of the order;|
|Licence Restrictions||are defined in clause 2;|
|Payment Processor||FastSpring (see fastspring.com for details)|
|Permitted Purpose||means the Customer’s own internal business purposes or for personal or household use;|
|Software||means Hub85 Software and the Third Party Software;|
|Hub85 Software||means software for analysing Microsoft Excel spreadsheets used by licensed users, including a Microsoft Excel add-in, which provides end-users with a range of analysis, efficiency and workflow tools, and sold under the name “Workscope”.|
|VAT||means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom; and|
1.2 In this Agreement:
1.2.1 the table of contents, background section and the clause, paragraph or other headings in this Agreement are included for convenience only and shall have no effect on interpretation;
1.2.2 any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.3 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;
1.2.4 a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
1.2.5 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2.1 Subject to the terms of this Agreement and payment of the Licence Fee, Hub85 grants the Customer a non-exclusive licence to install and use the Software for the Duration (the “Software Licence”).
2.2 Licence Restrictions are here expressed in terms of the number of simultaneous users (or “seats”) who the Customer may permit to use the Software at any one time. Unless otherwise stated at the time the Customer placed their order, the Software Licence is for one seat only.
2.3 The Software Licence is subject to the following usage restrictions (“Licence Restrictions”):
2.3.1 At most one person, per seat, may use the Software at any one time.
2.3.2 The Customer may install copies of the Software on up to two computers per seat.
2.3.3 Neither it (nor any seat) may not be assigned or transferred in any way.
2.4 The Software Licence shall include a right for the Customer to grant sub-licences for the Duration to any of its employees or contractors working directly as part of Customer’s enterprise. The Customer shall:
2.4.1 be liable for the acts and omissions of any sub-licensees as if they were its own; and
2.4.2 procure that each sub-licensee is aware of, and complies with, the obligations and restrictions imposed on the Customer under this Agreement, including all obligations and restrictions relating to record keeping, audits and installation or use of the Software and Hub85’s Confidential Information.
2.5 Any sub-licences granted by the Customer shall:
2.5.1 be subject to the same restrictions as the Software Licence in addition to any other restrictions set out below;
2.5.2 be limited in the number of seats associated with the sub-licence, such that the total number of seats associated with all sub-licences may not exceed the total number of seats under the Software Licence;
2.5.3 prohibit further sub-licensing; and
2.5.4 shall terminate immediately on expiry or termination of this Agreement.
2.6 Without prejudice to any other rights or obligations of either party, if the Customer at any time has or obtains additional copies of the Software beyond those licensed under this Agreement, it shall promptly destroy the additional copies.
2.7 Hub85 may monitor the use of the Software for the purpose of checking compliance with these licence terms and to assist its debugging and development of the Software, new version of the Software or new products and may do so by having the Software periodically connect to Hub85’s systems. It is a condition of the licence granted under this Agreement that Customer does not do anything which may prevent the Software from making such a connection. If the Software is unable to do so for an extended period of time, it may refuse to function unless and until it is able to do so. If the Software detects that any Licence Conditions are being broken, it may refuse to function.
3 Limitations on use
3.1 The Free Version will permit a user to of the Software to run the “Health Check” feature at most four times per week.
3.2 Except as expressly permitted under this Agreement or by law, the Customer shall not:
3.2.1 use, copy, modify, adapt, correct errors, or create derivative works from, the Software;
3.2.2 decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Software other than in the circumstances set out in clause 3.3;
3.2.3 assign, sub-licence, lease, resell, distribute or otherwise deal in or encumber the Software;
3.2.4 remove or modify any copyright or similar notices, or any of Hub85’s or any other person’s branding, that the Software causes to be displayed when used;
3.2.5 install or use the Software, or permit it to be installed or used, on behalf of any third party or otherwise than for Permitted Purpose; or
3.2.6 attempt to circumvent or interfere with any security features of the Software.
3.3 If it is necessary for the Customer to decompile the Software in order to create an independent program to allow the interoperability of the Software with other software, it shall notify Hub85 in writing in advance and request the provision of the information necessary to enable such interoperability. Hub85 may, but is not obliged to, provide such information and assistance to the Customer as it considers appropriate.
3.4 The Customer may make such back-up copies of the Software as is reasonably necessary.
3.5 The Customer shall not exceed the Licence Restrictions and acknowledges that it shall be required, without prejudice to any other rights or remedies to which Hub85 may be entitled, to pay Hub85 at Hub85’s then-current rates for any additional usage of the Software.
3.6 The Customer shall install and use the Software at all times in accordance with the Knowledgebase and all other terms of this Agreement.
3.7 The Customer shall be permitted to use the Software in machine-readable object code form only.
3.8 The Customer shall notify Hub85 in writing as soon as it becomes aware of any actual or suspected unauthorised installation or use of the Software (including any installation or use in excess of the Licence Restrictions).
4.1 Hub85 shall make the Software available for download to the Customer, and the Knowledgebase available to the Internet, continuously for the Duration with the exception of periods of time which are:
4.1.1 Periods of unavailability planned in advance by Hub85 for reasonable periods of time to meet its reasonable needs, for example for maintenance or security; and
4.1.2 Other periods of unplanned unavailability not exceeding 5% of the total Duration.
4.2 Hub85 shall provide all reasonable instructions, including any necessary activation codes or licence keys. It is the Customer’s responsibility to ensure that its computer system and network connection is capable of downloading the Software.
5 Technical Support
5.1 Hub85 does not offer any additional support services (beyond the Knowledgebase) for the Free Version; otherwise it will make reasonable efforts to supply customer support in the form described at addin.workscope.com.
6.1 Hub85 shall provide the Customer with access to online documentation relating to the Software including instructions on how to use the Software and detailing any specific user requirements or restrictions relating to the Software. The Knowledgebase is an example of Hub85’s Confidential Information.
7.1 Payment is made through the Payment Processor.
7.2 Unless the 14 day free trial is selected, payment will be taken when the Customer selects any service other than the Free Service and then every month thereafter until this Agreement terminates, or the Customer changes their subscription to the Free Service.
7.3 If the 14 day free trial is selected and the Customer cancels the free trial before it has expired, their subscription will be downgraded to the Free Service at the end of the trial period; otherwise payment will be taken automatically as soon as the free trial has completed and then every month thereafter until this Agreement terminates, or the Customer changes their subscription to the Free Service.
7.4 The Customer agrees to abide by any terms imposed by the Payment Processor associated with any payment being made.
7.5 On receipt of payment Hub85 will send the Customer an invoice (if VAT is chargeable, a VAT invoice).
8.1 The Customer acknowledges that no liability or obligation is accepted by Hub85 (howsoever arising whether under contract, tort, in negligence or otherwise):
8.1.1 that the Software shall meet the Customer’s individual needs, whether or not such needs have been communicated to Hub85;
8.1.2 that the operation of the Software shall not be subject to minor errors or defects; or
8.1.3 that the Software shall be compatible with any software or with any particular hardware or equipment other than as described in the Knowledgebase.
8.2 Other than as set out in this clause 8, and subject to clause 10.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable skill and care or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
9 Intellectual Property Rights
9.1 Subject to clauses 9.2 and 9.6, Hub85 shall:
9.1.1 defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of Hub85 Software infringes any copyright, database right or registered trade mark, registered design right or registered patent in the United Kingdom (an IP Claim); and
9.1.2 pay, subject to clause 9.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
9.2 The provisions of clause 9.1 shall not apply unless the Customer:
9.2.1 promptly notifies Hub85 upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
9.2.2 makes no comment or admission and takes no action that may adversely affect Hub85’s ability to defend or settle the IP Claim;
9.2.3 provides all assistance reasonably required by Hub85 subject to Hub85 paying the Customer’s reasonable costs; and
9.2.4 gives Hub85 sole authority to defend or settle the IP Claim as Hub85 considers appropriate.
9.3 The provisions of clause 10 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 9.1.
9.4 If Hub85 Software is or is likely to become subject to an IP Claim, Hub85 shall use reasonable endeavours to:
9.4.1 obtain the right for the Customer to continue to use Hub85 Software; or
9.4.2 replace or modify Hub85 Software (or the part of it subject to the IP Claim) so that it becomes non-infringing without materially affecting the functionality of Hub85 Software set out in the Description.
9.5 If Hub85 is unable to achieve either of the outcomes described in clause 9.4 having used reasonable endeavours (including where the costs of doing so are commercially prohibitive) or otherwise elects to proceed under this clause 9.5 then, on receiving written notification from Hub85, the Customer shall promptly uninstall the Software and this Agreement shall immediately terminate. Hub85 shall refund the Customer on a pro-rata basis for any unused proportion of Licence Fees paid in advance. This clause 9.5 is without prejudice to the Customer’s rights and remedies under clauses 9.1.
9.6 Hub85 shall have no liability or obligation under this clause 9 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
9.6.1 any modification of the Software without Hub85’s express written approval;
9.6.2 installation or use of the Software otherwise than in accordance with this Agreement, any information given in the Knowledgebase or Hub85’s instructions; or
9.6.3 installation or use of the Software in combination with any software, hardware or data that has not been supplied or expressly authorised by Hub85.
9.7 Subject to clause 10.5, the provisions of this clause 9 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
9.8 Except for the rights to install and use the Software and use the Knowledgebase expressly granted in this Agreement, the Customer shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Software, the Knowledgebase or in any copies of them and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
10 Limitation of liability
10.1 The extent of Hub85’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 10.
10.2 Subject to clause 10.5, Hub85’s total aggregate liability howsoever arising under or in connection with this Agreement shall not exceed an amount equal to the Licence Fee.
10.3 Subject to clause 10.5, Hub85 shall not be liable for consequential, indirect or special losses.
10.4 Subject to clause 10.5, Hub85 shall not be liable for any of the following (whether direct or indirect): loss of profit; loss or corruption of data; loss or corruption of software or systems; loss or damage to equipment; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); and/or harm to reputation or loss of goodwill.
10.5 Notwithstanding any other provision of this Agreement, Hub85’s liability shall not be limited in any way in respect of the following:
10.5.1 death or personal injury caused by negligence;
10.5.2 fraud or fraudulent misrepresentation; or
10.5.3 any other losses which cannot be excluded or limited by applicable law.
11 Duration and termination
11.1 This Agreement shall come into force when Hub85 sends the Customer a confirmation email to the Customer indicating that the Agreement is in force. The Agreement shall continue as follows:
11.1.1 In the case of the 14 day trial version, until terminated;
11.1.2 In the case of the Free Version, until terminated;
11.1.3 In all other cases, monthly or annually until terminated.
11.2 Either party may terminate this Agreement at any time unless a Licence Fee is being paid in which case at the end of a billing period.
11.3 Hub85 may terminate this Agreement at any time if the other party commits a material breach of this Agreement that is not remediable;
11.4 Any breach by the Customer of clause 3 shall be deemed a material breach of this Agreement which is not remediable.
11.5 Either party may terminate this Agreement at any time if the other party
11.5.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
11.5.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Hub85 reasonably believes that to be the case;
11.5.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
11.5.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
11.5.5 has a resolution passed for its winding up;
11.5.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
11.5.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within five Business Days of that procedure being commenced;
11.5.8 has a freezing order made against it;
11.5.9 is subject to any recovery or attempted recovery of items supplied to it by a Hub85 retaining title to those items;
11.5.10 is subject to any events or circumstances analogous to those in clauses 11.5.1 to 11.5.9 in any jurisdiction;
11.5.11 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 11.5.1 to 11.5.10 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
11.6 The right of a party to terminate the Agreement pursuant to clause 11.5 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.
11.7 All rights of termination under this heading (“Duration and termination”) must be exercised:
11.7.1 In the case of the Customer by selecting to delete your account from the client login area section or by emailing firstname.lastname@example.org.
11.7.2 In the case of Hub85 by sending an email to the Customer informing them that the Agreement is due to terminate.
12 Consequences of termination
12.1 Immediately on termination or expiry of this Agreement (for any reason), the licences and rights granted by Hub85 shall terminate and the Customer shall (and shall procure that each sub-licensee shall):
12.1.1 stop using and uninstall the Software; and
12.1.2 destroy and delete o any copies of the Software.
12.2 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.
13.1 The Customer shall maintain the confidentiality of Hub85’s Confidential Information and shall not without the prior written consent of Hub85, disclose, copy or modify the Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
13.2 The Customer undertakes to:
13.2.1 disclose Hub85’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and
13.2.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 13.
13.3 The Customer shall inform Hub85 of any unauthorised misuse, disclosure, theft or loss of Hub85’s Confidential Information immediately upon becoming aware of the same.
13.4 The Customer shall indemnify, keep indemnified and hold harmless Hub85 from and against any losses, claims, damages, liability costs (including legal and other professional fees) and expenses incurred as a result of or in connection with any breach by the Customer of this clause 13.
13.5 The provisions of this clause 13 shall not apply to information which:
13.5.1 is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
13.5.2 is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
13.5.3 is independently developed by the Customer, without access to or use of such information; or
13.5.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies Hub85 at the earliest opportunity before making any disclosure.
13.6 The obligations under this clause 13 shall survive the termination or expiry of this Agreement for a period of five years.
14 Entire agreement
14.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
14.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.
14.3 Nothing in this Agreement shall limit or exclude any liability for fraud.
15.1 Either party shall be permitted at any time to announce and/or publicise the entering into of this Agreement but shall not disclose the details of the Licence Fees payable by the Customer.
16 Electronic mail
16.1 Hub85 may assume that the details of the electronic mail address of the Customer it has been given by the Customer from time to time are correct. Where Hub85 has a duty to inform the Customer or send the Customer an email, it may discharge that duty by sending an electronic mail message to that address, regardless of whether it remains valid. It is the Customer’s responsibility to ensure that the contact email address it has supplied to Hub85 is valid.
No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
18 Assignment and subcontracting
18.1 Hub85 may at any time assign, subcontract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement, provided that it informs the Customer that has done so.
18.2 Except as expressly permitted by this Agreement, the Customer shall not assign, transfer, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without Hub85’s prior written consent.
19 Set off
Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
20 No partnership or agency
The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
21.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
21.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
22.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
22.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
22.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
23 Compliance with law
23.1 Each party shall comply with all applicable laws and shall maintain such authorisations and approvals as required from time to time to perform their obligations under or in connection with this Agreement.
23.2 Without prejudice to the generality of clause 23.1, the parties shall comply with all applicable laws, rules, and regulations governing export of goods and information that apply to the Software and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Software to any country for which an export licence or other approval is required, without first obtaining such licence or other approval. The Customer shall be solely responsible for ensuring its access, importation or use of the Software in or into any territory complies with all export laws.
24 Conflicts within agreement
If there is a conflict between the terms contained in the main body of this Agreement and the terms of the schedules, the terms of the main body of the Agreement shall prevail.
25 Third party rights
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
26 Governing law
This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).