EULA – END USER LICENCE AGREEMENT
This agreement is between GAMES WITHOUT FRONTIERS LIMITED a limited liability company registered in Scotland (Registration No: SC558738) whose registered office is at Mount Parnassus, Harlaw Road, Currie, Edinburgh, Scotland EH14 6AS trading as GingrTech (“GingrTech”) and you (“the User”). This is a Click to Agree Contract from within the Software if the User wishes to be bound by these Terms and Conditions. If the User does not agree to be bound by these Terms and Conditions, the User cannot USE the Software. The contract (“Agreement”) between the User and GingrTech will comprise:
- these Terms and Conditions; and
1. Access to the Software.
GingrTech grants to the User a non-exclusive, royalty based, non-sublicensable licence to Use the Software for the User’s personal business use for the duration of this Agreement, subject to the following conditions:
(i) The Software is located on the Platform.(ii) GingrTech has full administrative access rights to the Platform.
(iii) Users may access the Software but have no right to administer the Platform or receive a copy of the object code or source code to the Software.
2. Conditions of Use
The rights to use the Software provided to the User are non-exclusive, non-transferable and are for the User’s personal business use only. The User’s right to use the Software is subject to the following conditions: -the User shall not:
2.1 Transfer to any other person any of its rights to use the Software;
2.2 Sell, license, sub-license rent or lease the Software;
2.3 Make the Software available to anyone who is not a User;
2.4 Create any derivative works based upon the Software or Documentation;
2.5 Copy any feature, design or graphic in, or reverse engineer the Software (including without prejudice to the foregoing generality the graphical user interface and menu command hierarchy);
2.6 Access the Software (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if the User is an employee or contractor of a GingrTech competitor;
2.7 Use the Software in a way that violates any criminal or civil law;
2.8 Load test or security test the Software in order to test scalability or security;
2.9 Exceed any specified usage limits listed the Documentation.
3. User Content/Security
3.1 Users provide all data for use in the Software, and GingrTech is not obliged to modify or add to User Content except as specified in Clause 4. The User is solely responsible for User Content and the accuracy of User Content.
3.2 User Content belongs to the User or its licensors, and GingrTech makes no claim to any right of ownership in it.
3.3 GingrTech shall keep User Content confidential in accordance with Clause 14 of this Agreement.
3.4 Subject to the terms of Clause 4, GingrTech shall only be entitled to use User Content strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, GingrTech:
3.4.1 may observe and report back to the User on the User’s usage of the Software, and make recommendations for improved usage of the Software;
3.4.2 may identify trends and publish reports on its findings provided the reports include data aggregated from more than one site of the User and do not identify the User;
3.6 Sharing of accounts is not permitted unless expressly authorised in writing by GingrTech. Users must keep account details confidential and Users should not reveal their username or password to any unauthorised third parties. GingrTech accepts no liability for any losses or damages incurred as a result of account details being shared in breach of the terms of this Agreement. It is recommended that Users do not save account details in their internet browser.
3.7 Whereas as part of the Subscription Services, GingrTech may host email accounts or other online communications infrastructure or subscription accounts (including the GingrTech subscription itself) for Users, GingrTech accepts no responsibility and shall not be liable for third parties accessing such email, online communications accounts or subscription accounts by way of breaking or hacking passwords. It is the responsibility of Users to ensure that all email, online communications accounts and subscription accounts are properly protected with robust passwords. The terms of Clause 4 apply to the use of any such email, online communications accounts and subscription accounts.
4. Acceptable Usage Policy
4.1 Without prejudice to the generality of Clause 2.7, when using the Software; Users should do so in accordance with the following rules:
4.1.1 Users must not use obscene or vulgar language;
4.1.2 User Sites may not contain any material that is unlawful or otherwise objectionable (including that which may be in breach of rules, regulations or legislation in force in the United Kingdom or any other jurisdiction in which the User’s User Site can be lawfully accessed. This does not extend to material which may be automatically blocked in certain jurisdictions but that is lawful in the User’s home country);
4.1.3 User Sites may not contain any material that is intended to promote or incite violence or any other unlawful conduct against any group, individual or animal. This includes, but is not limited to, the provision of instructions on how to assemble weapons of any kind, bombs, grenades or other explosive devices;
4.1.4 User Sites may not infringe the Intellectual Property rights of any third party including, but not limited to, copyright, trademarks, patents and designs;
4.1.5 User Sites may not contain any material that may contain viruses or other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
4.1.6 User Sites may not be used for unauthorised mass-communications such as “spam” or “junk mail”; and
4.2 GingrTech does not screen or pre-approve any User Site or User Content (although Users acknowledge that GingrTech may do so if it wishes).
4.3 GingrTech may edit a User Site to comply with the provisions of sub-Clause 4.1 without prior consultation. In cases of severe breaches of the provisions of sub-Clause 4.1, a User Site may be taken down and the relevant account may be suspended or terminated. The User will not be informed in writing of the reasons for such alterations or take downs.
4.4 GingrTech accepts no responsibility or liability for any infringement of third-party rights by User Sites.
4.5 GingrTech will not be liable in any way or under any circumstances for any loss or damage that any User may incur as a result of such User Sites, or GingrTech exercising its rights under this Agreement, nor for any errors or omissions in User Sites. Use of and reliance upon User Sites is entirely at the User’s own risk.
4.6 The User acknowledges that GingrTech may retain copies of any and all communications, information, User Content and User Sites sent to GingrTech.
5. Intellectual Property
5.1 Subject to the exceptions in Clause 6 of this Agreement, all Content, that is not User Content, and the Database and the Software and the Documentation are the property of GingrTech, or GingrTech’s Affiliates or licensors. By continuing to use the Software the User acknowledges that such material is protected by applicable United Kingdom and international Intellectual Property and other laws.
5.2 You may not print, reproduce, copy, distribute, store or in any other fashion re-use Content from the Software for personal or educational purposes unless otherwise given GingrTech’s express written permission to do so. Specifically, the User agrees that it will not systematically copy Content from the Software with a view to creating or compiling any form of comprehensive collection, compilation, directory or database unless given GingrTech’s express written permission to do so.
5.3 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, the User acknowledges that the same shall be the property of GingrTech unless otherwise agreed in writing by GingrTech.
5.4 Any trade mark, trade name or logo such as “Powered by GingrTech” appearing on or in the Software is the property of GingrTech and must not be copied, obscured or removed from the Software.
6. User Site Intellectual Property
6.1 The Intellectual Property rights subsisting in the User Content of User Sites belong to the User to which that/those User Site(s) belong(s) unless it is expressly stated otherwise.
6.2 Where expressly indicated, certain Content available through User Sites and the Intellectual Property rights subsisting therein belongs to other parties.
6.3 The third party Content described in this Clause 6, unless expressly stated to be so, is not covered by any permission granted by Clause 5 of these Terms and Conditions to use Content.
6.4 For the avoidance of doubt, the Database (excluding the User Content therein) shall not be considered User Content.
7. Third Party Intellectual Property
7.1 Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, Copyright and Trademarks, in Content belong to the manufacturers or distributors of such products as may be applicable.
7.2 Subject to Clause 5 the User may not reproduce, copy, distribute, store or in any other fashion re-use Content unless otherwise indicated on the Software or the Documentation or unless given express written permission to do so by the relevant manufacturer or supplier.
8. Warranty Disclaimer
Except as expressly provided in this Agreement, the Software and Professional Services are provided with no other warranties of any kind, and GingrTech disclaims all other warranties, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose. GingrTech does not warrant that the use of the Subscription Services shall be uninterrupted or error-free.
9. Limitation of Liability
9.1 Neither party shall be liable under this Agreement for any indirect, special, incidental, punitive or consequential damages (including without limitation damages for loss of goodwill, work stoppage, computer failure or malfunction, lost or corrupted data, lost profits, lost business or lost opportunity), or any other similar damages under any theory of liability (whether in contract, tort/delict, strict liability or any other theory), even if the other party has been informed of this possibility. Each party’s total liability for any direct loss, cost, claim or damages of any kind related to this Agreement or the relevant Order shall not exceed the sum of £10,000. However, there is no limitation on direct loss, claim or damages arising as a result of an infringement of either party’s Intellectual Property rights by the other party, or a breach of the Privacy Legislation by the other party.
9.2 GingrTech’s liability under this Agreement (except where provided otherwise in this agreement to a lesser extent) shall be limited to the amount of professional indemnity insurance underwritten in the name of GingrTech which shall be £1,000,000. This limitation shall not apply to a breach of the Privacy Legislation.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that
(i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available;
(ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records;
(iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or
(iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
10.2 Subject to clauses 4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party (other than to a consultant or a Sub-contractor for the purposes of this Agreement and which consultant or Sub-contractor shall have entered into undertakings of confidentiality in relation to the Confidential Information on terms no less onerous than those contained in this Clause 10), or use the other’s Confidential Information for any purpose other than to carry out its obligations under this Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of a competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.6 This clause 10 shall survive termination of this Agreement or any Order, howsoever arising.
11. Indemnification by the User
11.1 The User shall indemnify and hold harmless GingrTech, its Affiliates, directors, and employees from any damages finally awarded against GingrTech (including, without limitation, reasonable costs and legal fees incurred by GingrTech) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the User Content, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the User Content (“Legal Claim”).
11.2 GingrTech shall give written notice to the User of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim and shall give copies to the User of all communications, notices and/or other actions relating to the Legal Claim. GingrTech shall give the User the sole control of the defence of any Legal Claim, shall act in accordance with the reasonable instructions of the User and shall give the User such assistance as the User reasonably requests to defend or settle such claim. The User shall conduct its defence at all times in a manner which is not adverse to GingrTech’s interests. GingrTech may employ its own counsel to assist it with respect to any such claim. GingrTech shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with the User or its counsel, or because the User fails to assume control of the defence. GingrTech shall not settle or compromise any Legal Claim without the User’s express written consent.
This Agreement shall be governed by the laws of England and Wales. The parties consent to the exercise of exclusive jurisdiction of the Courts of England.
13. Feedback and Modifications
13.1 The User hereby acknowledges that upon submitting Feedback to GingrTech, the User automatically grants to GingrTech a worldwide, perpetual, irrevocable, royalty free licence to use that Feedback in any way GingrTech deems appropriate including, but not limited to:
13.1.1 The use, publication, distribution, transmission, broadcasting, licensing, sub-licensing, leasing, lending and sale of the Feedback; and
13.1.2 The creation, use, publication, distribution, transmission, broadcasting, licensing, sub-licensing, leasing, lending and sale of any derivative works based upon the Feedback.
is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or
(iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
13.2 GingrTech’s use of the Feedback shall not bestow any rights or interests upon the User whatsoever.
13.3 The User hereby acknowledges that any modifications made to the Software at the request or suggestion of the User will belong to and be the Intellectual Property of GingrTech.
The parties shall comply at all times with the provisions of the United Kingdom Anti-terrorism, Crime and Security Act 2001, and the United Kingdom Bribery Act 2010 and the United States Foreign Corrupt Practices Act and all analogous legislation applicable in any other relevant jurisdiction.
15.1 “Affiliate” means an entity which controls, is controlled by, or is under common control with, a party, and control means the ability to vote 50% or more of the voting securities of any entity or otherwise having the ability to influence and direct the polices and direction of an entity;
15.2 “Content” means any text, graphics, images, audio, video, software, data compilations including, but not limited to, text, graphics, logos, icons, sound clips, video clips, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of the Software or the Platform; BUT excluding User Content;
15.3 “Database” means the database stored on the Platform which contains inter alia User Content;
15.4 “DPA” means the Data Protection Act 2018 and any modification, amendment or re-enactment thereof;
15.5 “Documentation” means user documentation provided electronically by GingrTech for use with the Software, as periodically updated;
15.6 “Feedback” means all comments, suggestions, requests, requirements, improvements, feedback, or other input the User provides regarding any products or Services owned or supplied by GingrTech, its Affiliates and licensees;
15.7 “GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) as amended, replaced, supplemented or adopted into United Kingdom Legislation;
15.8 “Intellectual Property” means patents, trademarks, trade name, service mark, copyright, trade secrets, know-how, process, technology, development tool, ideas, concepts, design right, domain names, moral right, database right, methodology, algorithm and invention, and any other proprietary information (whether registered, unregistered, pending or applied for);
15.9 “Platform” means the hardware and software environment in which the software element of the Software operates, which comprises one or more server computers (whether virtual or not), mirroring/duplicating/back-up and storage systems and relative hardware operating software, virtual machine software (where relevant), operating system software, database software, anti-virus and security software, switches, power supplies and telecommunications infrastructure;
15.10 “Privacy Legislation” means the GDPR, the DPA, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner. (as amended or replaced from time to time);
15.12 “Software” means the GingrTech proprietary operating software and the Third Party Software written in object and source code residing on and used for operating the Platform and the Software as Updated and Upgraded from time to time;
15.13 “Third Party Software” means software other than the Software which belongs to third parties and in relation to which GingrTech has the right to grant sub-licenses;
15.14 “Update” means any update, update rollup, service pack, feature pack, critical update, security update, or hotfix that is used to improve or to fix a software product;
15.15 “Upgrade” means a software package that replaces an installed version of a product with a newer version of the same product, typically leaving existing customer data and preferences intact while replacing the existing software with the newer version;
15.16 “User” means the person that has permission to access the Software as a named user and is not employed by GingrTech and acting in the course of their employment;
15.17 “User Content” means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of a User Site or the Software and has been uploaded by a User;
15.18 “User Site” means a partition/tenancy on the Platform created by GingrTech for a User or Users accessing the Software which shall contain User Content and shall be hosted on the Platform;