HEED End User Licence Agreement

Please read this End User Licence Agreement (“EULA”) carefully, as it sets out the terms and conditions upon which we license our Software for use.

Before you download the Software from our website, we will ask you to give your express agreement to the terms and conditions of this EULA. You further agree that any person you authorise to use the Software will also be bound by the terms and conditions of this EULA.

If you do not agree to this EULA, you must not use the Software for any purpose whatsoever.

  1. Definitions and interpretation

1.1 In this EULA:

"Documentation" means the documentation concerning the use of the Software supplied or made available by Heed to the Licensee in conjunction with the Software;

"Effective Date" means the date when the Licensee agrees to the terms and conditions of this EULA, as detailed in the preamble to this EULA;

"EULA" means this end user licence agreement (including the preamble), and any amendments to it from time to time;

"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 or problems with the internet, a part of the internet or any public telecommunications network, 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 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);

"Heed" means Heed Software Limited, a company incorporated in England (registration number 07312715) having its registered office at Unit 37 Chocolate Studios, Shepherdess Place, London N1 7LJ;

"Licensee" means the licensee of the Software under this EULA;

"Software" means the software in object code form in respect of which this EULA is supplied or made available, including any Upgrades to the Software;

"Upgrades" means new versions of, and updates to, the Software, whether for the purpose of fixing an error, bug or other issue in the Software or enhancing the functionality of the Software.

"Terms and Conditions of Service" means the terms and conditions under which Heed may supply software services, support services and/or consultancy services to the Licensee; and

  1. Term of EULA

This EULA will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 9.

  1. Licence

3.1 The Licensee may only use the Software and Documentation for the Licensee's business purposes and in accordance with the provisions of this Clause 3.

3.2 Subject to the Licensee's compliance with Clause 3.4 and the other provisions of this EULA, Heed grants to the Licensee a non-exclusive, non-transferable worldwide licence to: (a) download and reproduce the Software and Documentation; (b) install the Software and Documentation; (c) use the Software in accordance with the Documentation (including interacting with the Software by means of the API specified in the Documentation); and (d) use the Documentation in connection with the Software.

3.3 The Licensee must not: (a) copy or reproduce the Software or Documentation or any part of the Software or Documentation other than in accordance with the licence granted in this Clause 3; (b) sell, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Software or Documentation or any part of the Software or Documentation; (c) modify, alter, adapt, translate or edit, or create derivative works of, the Software or Documentation or any part of the Software or Documentation; (d) reverse engineer, decompile or disassemble the Software or Documentation or any part of the Software or Documentation; (e) use the Software other than in accordance with the Documentation; or (f) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Software for the purposes of preventing unauthorised use, providing that nothing in this Clause 3.3 will prohibit or restrict the Licensee or any other person from doing any act expressly permitted by applicable law (including any act expressly permitted by Section 296A of the Copyright, Designs and Patents Act 1988).

3.4 All Intellectual Property Rights in the Software and Documentation are and will remain, as between the parties, the property of Heed.

  1. Other users

4.1 The Licensee may permit any officer or employee of the Licensee to exercise the rights granted by Heed to the Licensee under Clauses 3.2(c) and (d), subject always to the restrictions set out in Clause 3.3.

4.2 The Licensee must ensure that any person using the Software and/or Documentation in accordance with Clause 4.1 is made aware of, and agrees to, the terms of this EULA.

  1. Upgrades

The Licensee may apply to the Software each Upgrade released by Heed and made available by Heed from time to time. However, the Licensee shall have no obligation to do so. Licensee understands that if it does not apply Upgrades, the provision of the support services may be adversely affected.

  1. Support

Heed shall provide support services to the Licensee in relation to the Software or Documentation as set out in the Licensee’s agreed support package.

  1. Licensee acknowledgements

The Licensee acknowledges that: (a) the Software may not be free of bugs, errors, security issues and compatibility issues; (b) such bugs, errors, security issues and compatibility issues shall not constitute a breach of this EULA; and (c) the Software has not been developed to meet the specific requirements of the Licensee, and accordingly the Licensee will be responsible for ensuring that the Software is suitable to meet the Licensee's requirements.

  1. Limitations and exclusions of liability

8.1 Nothing in the EULA will: (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;(c) limit any liability of a party in any way that is not permitted under applicable law; or (d) exclude any liability of a party that may not be excluded under applicable law.

8.2 The limitations and exclusions of liability set out in this Clause 8 and elsewhere in the EULA: (a) are subject to Clause 8.1; and (b) govern all liabilities arising under the EULA or in relation to the subject matter of the EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.

8.3 Heed will not be liable to the Licensee for any losses arising out of a Force Majeure Event.

8.4 Heed will not be liable to the Licensee in respect of any business losses, including loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.

8.5 Heed will not be liable to the Licensee in respect of any loss or corruption of any data, database or software.

8.6 Heed will not be liable to the Licensee in respect of any special, indirect or consequential loss or damage.

8.7 Heed’s total, aggregate liability to the Licensee in relation to any event or series of related events (including liabilities under and relating to both this EULA and the Terms and Conditions of Service) shall not exceed the greater of: (a) GBP 1,000,000; and (b) the total amount paid and payable by the Customer to Heed under the Agreement.

8.8 For the avoidance of doubt, Heed’s 's aggregate liability to the Licensee (including liabilities under and relating to both this EULA and the Terms and Conditions of Service) shall not exceed the cap specified in Clause 8.7 above.

8.9 If the Licensee uses the Software without purchasing any services from Heed connected to the Software, then Heed shall have no liability to the Licensee in respect of any loss or damage arising out of the Software or the use of the Software.

  1. Termination

This EULA will terminate immediately and automatically if: (a) the Licensee or any person authorised by the Licensee to use the Software and/or Documentation breaches any provision of this EULA; (b) the Licensee: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (c) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Licensee; (d) an order is made for the winding up of the Licensee, or the Licensee passes a resolution for its winding up; or (e) (where the Licensee is an individual) the Licensee dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

  1. Effects of termination

10.1 Upon termination all the provisions of this EULA will cease to have effect, save that the following provisions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 8, 10 and 11.

10.2 Termination of this EULA will not affect either party's accrued rights and liabilities.

  1. General

11.1 No breach of any provision of this EULA will be waived except with the express written consent of the party not in breach.

11.2 If a Clause of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this EULA will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

11.3 Heed may freely assign this EULA and/or its rights and/or obligations under this EULA without the Licensee's consent. Save as expressly provided in this EULA, the Licensee must not assign, transfer, charge, license or otherwise dispose of or deal in this EULA and/or any of its rights and/or obligations under this EULA.

11.4 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.

11.5 Subject to Clause 8.1: (a) this EULA constitutes the entire agreement and understanding of the parties in relation to the subject matter of this EULA, and supersedes all previous agreements, arrangements and understandings between the parties in relation to the subject matter of this EULA; and (b) each party acknowledges that no representations or promises not expressly contained in this EULA have been made by or on behalf of the other party.

11.6 This EULA will be governed by and construed in accordance with English law; and the courts of England will have exclusive jurisdiction to adjudicate disputes arising out of or relating to this EULA.

Heed

Acceptable Use Policy

This Acceptable Use Policy (the "Policy") governs your use of the services of Heed Software Limited ("Heed") under a written agreement (the "Agreement") which it supplements, and you will be asked to agree to the terms of this Policy before using those services (the "Services").

  1. You must not:

          (a)      use the Services in any way that causes, or may cause:

(i)      damage to Heed's or any Heed subcontractor's business, systems or services; or

(ii)      impairment of the availability or accessibility of Heed's or any Heed subcontractor's systems or services;

(b)      use the Services in any way that is unlawful, illegal, fraudulent, misleading or harmful;

(c)      use the Services in connection with any unlawful, illegal, fraudulent, misleading or harmful purpose or activity;

(d)      use the Services in any way that might reasonably be expected to put Heed in breach of a contractual or other legal obligation owed by Heed to any Heed subcontractor or service provider (including Heed's SMS service provider, whose current terms and conditions will be notified to you or made accessible through the Services from time to time);

(e)      use the Services to gain unauthorised access to any computer, network or system;

(f)      use the Services for or in connection with any bullying or trolling;

(g)      use the Services in any way that may restrict or inhibit any other person's use of Heed's or any Heed subcontractor's products or services;

(h)      forge header information, or source addresses or other user information;

(i)      access, monitor or use any data, systems or networks, including another person's private information, without authority or attempt to probe, scan or test the vulnerability of any data, system or network;

(j)      compromise the security or integrity of any network or system including the Heed network;

(k)      use another person's name, username or password or otherwise attempt to gain access to the account of any other customer; or

(l)      tamper with, hinder the operation of or make unauthorised modifications to any network or system.

  1. You must not use the Services to store, host, copy, process, distribute, display, publish, transmit or send works or materials that:

(a)      are illegal or unlawful;

(b)      will or may infringe any person's intellectual property rights or other legal rights; or

(c)      could give rise to legal proceedings, whether against you, Heed, an Heed subcontractor or another third party,

          in each case in any jurisdiction and under any applicable law.

  1. Without prejudice to the generality of Paragraph 2, you must not use the Services to store, host, copy, process, distribute, display, publish, transmit or send works or materials that:

(a)      are defamatory, slanderous, libellous or maliciously false;

(b)      are obscene or indecent;

(c)      infringe any copyright, moral rights, database rights, patents, trade mark rights, design rights or rights in passing off;

(d)      infringe any rights of confidence, rights of privacy or rights under data protection legislation;

(e)      constitute negligent advice or contain any negligent statement;

(f)      constitute an incitement to commit a crime;

(g)      are in contempt of any court, or in breach of any court order;

(h)      are in breach of racial or religious hatred legislation or discrimination legislation;

(i)      are blasphemous; or

(j)      are in breach of official secrets legislation.

  1. You must not use the Services to store, host, copy, process, distribute, display, publish, transmit or send works or materials that:

(a)      are pornographic or sexually explicit;

(b)      constitute spam or unsolicited marketing communications;

(c)      are likely to cause annoyance, offence, inconvenience or anxiety to another person;

(d)      are viruses, Trojans, worms, root kits, spyware or other harmful software, programs, routines, applications or technologies;

(e)      constitute software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or present significant security risks to a computer;

(f)      include corrupt data; or

(g)      are or are part of a chain letter, Ponzi scheme, pyramid scheme, matrix program, or similar scheme or program,

except to the extent that Heed expressly agrees otherwise.

  1. Subject to the other terms of the Agreement, you may store, host, copy, process, distribute, display, publish, transmit or send encrypted works and materials using the Services. If Heed so requests, you shall promptly:

(a)      decrypt such works and materials and provide the decrypted works and materials to Heed; and/or

(b)      supply to Heed the encryption keys and any other information reasonably required to decrypt such works and materials.

  1. You must not use the Services to send, store or process spam, junk emails, unsolicited commercial emails or bulk unsolicited emails.
  1. You must not abuse or insult any Heed personnel, or any Heed supplier, subcontractor or customer.
  1. If Heed reasonably suspects that there has been a breach of the provisions of this Policy, Heed may:

(a)      delete, disable, edit or amend the relevant works or materials;

(b)      suspend any or all Services and/or your access to any or all Services while it investigates the suspected breach; and/or

(c)      charge you for any costs incurred by Heed in investigating the breach and taking action under this Paragraph 8.

  1. You must not authorise, aid, abet, encourage or incite any other person to do any act prohibited by this Policy.