END-USER LICENCE AGREEMENT FOR AB TUTOR CONTROL

© 2000-2008 AB Software Consulting Ltd., all rights reserved.

IMPORTANT - READ CAREFULLY BEFORE INSTALLING OR USING THE AB TUTOR CONTROL SOFTWARE ('THE SOFTWARE')

BY CLICKING ON THE "ACCEPT" BUTTON OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THESE LICENCE TERMS. IF YOU DO NOT ACCEPT THESE LICENCE TERMS YOU MAY NOT USE THE SOFTWARE.

THIS IS AN AGREEMENT BETWEEN:-

(1) AB Software Consulting Ltd of 3 Wilfred Street, Woking, Surrey, GU21 6NJ, United Kingdom (“ABC”); and

(2) The institution, company or individual named as the licensed user when the Software is downloaded (“The User”)

Where the User has dealt indirectly through an independent distributor appointed by ABC, these terms and conditions shall additionally form the terms of the sub-licence between the distributor and the User in question.

LICENCE
The User is granted an evaluation licence for the Software at no charge for a maximum of 30 days from implementation. Use of the Software after this initial 30 day evaluation period will be deemed to be confirmation by the User that it acknowledges that it is liable to pay the licence fees as specified from time to time on ABC’s web site at the time of the download or as otherwise agreed with ABC or ABC’s distributor. Such licence fees are entirely non-refundable. Additional licences can be acquired as and when required at the prices applicable from time to time. All sums stated are exclusive of VAT (if applicable).

Licence Terms and Conditions
1.1 All copyright and other intellectual property rights whatsoever in the AB Tutor Control software and accompanying user documentation (the "Software") remain the absolute property of AB Software Consulting Limited ("ABC").

1.2 It is a condition of the Licence that the details submitted by the User to ABC when initially downloading and when ordering or purchasing the Software are accurate. The User is obliged as a condition of the Licence to update such details promptly as and when necessary.

1.3 In consideration of the licence fee paid by the User to ABC (or its authorised distributors) the User is granted a non-exclusive, non-transferable licence as set out herein to use the Software in object code only. The User’s rights to use the Software are expressly limited to loading, storing and running the object code version of the Software on hardware stated in the user documentation accompanying the Software to be compatible with it. The User is permitted to make copies of the Software as reasonably necessary for security back-up purposes only. All copyright and other proprietary notices contained on the original must be reproduced on all copies.

1.4 Subject to payment of the applicable licence fees and acceptance by ABC of the User’s offer to acquire licences in respect of the Software, (which acceptance will be indicated by ABC activating the applicable copies of the Software), the User is granted a perpetual, (subject to termination in accordance with clause 12), non-exclusive licence to use the Software. The Software comprises two distinct components, namely the ‘Student Program’ and the ‘Tutor Program’. The User may install an unlimited number of copies of the Student Program. The User may install copies of the Tutor Program on equipment owned by, leased or licensed to the User provided that the number of copies installed by or on behalf of the User does not exceed the number of licences for which licence fees have been paid. A single installation may not without prior express written agreement by ABC be used by more than one concurrent user. If the Software is to be installed on a computer belonging to anybody other than the User then the express consent of the owner must be obtained in advance.

1.4.1 To ensure that all copies of the Software being used are properly licensed, when the Software is downloaded and installed a unique identity code is generated by ABC. This identity code identifies and is uniquely linked to the specific personal computer or other hardware device upon which the Software was first installed. Upon the expiry of the initial 30 day evaluation period, the User must obtain from ABC or its distributor a corresponding ‘unlock code’ to fully activate the Software. The unlock code will only be provided once ABC (or its distributor) has received payment of the agreed licence fee or a binding order to acquire paid for licences from the User in a form satisfactory to ABC or its distributor. Transfer of the licence to an alternative personal computer or other hardware device is permitted at no additional charge providing that ABC’s procedures as specified from time to time are complied with.

1.4.2 For Users with multiple licensed copies of the Software, ABC may, in its absolute discretion, agree to allocate to the User either directly or via its distributor an ‘account serial number’ which can be used to unlock the Software on different personal computers or other hardware devices at once. However, if the User’s installations of the Software exceeds the number of licences which have been purchased then unless the User is willing to acquire and pay for the additional licences required, ABC reserves the right to disable the ‘account serial number’ facility and require the User to revert to the individual unlock code mechanism referred to in clause 1.4.1.

1.5 A soft copy of user documentation is supplied for each licensed concurrent user. The User acknowledges that neither ABC nor any of its distributors has any contractual or other obligation to support or maintain the Software. However, ABC (and where the Software has been acquired through an authorised distributor of ABC, by the distributor in question) may be prepared to provide telephone assistance during local office hours to deal with user queries and administration of the ‘unlocking’ mechanisms referred to in clause 1.4. ABC reserves the right to change its support policies at its discretion. Assistance will only provided in respect of the latest and immediately preceding version of the Software (or, if longer, for a minimum of two years from the date you acquired your User rights) and is provided on a ‘reasonable endeavours’ basis only. Neither ABC nor its distributors guarantee that any issues with the Software’s performance will be corrected immediately or at all for the reasons stated in clause 3. Users of the Software are entitled to download free of charge any new releases of their licensed version of the Software which may be issued by ABC from time to time to resolve issues relating to the performance of the Software. The version number is indicated by the digit before the decimal point. For example version 5 would be indicated by version 5.X. Users with a licence in respect of version 5 would be entitled to download all releases designated with the 5 prefix, 5.1, 5.2 etc.
Users are not entitled to new versions of the Software which are issued by ABC as upgrades to provide improved performance of functionality. Separate licence fees may be charged by ABC in return for the right to use these upgrades. These will be indicated by a new version number e.g. version 3.0 will constitute a chargeable upgrade for version 2 users.

2. The User is granted an evaluation licence for the Software at no charge for a maximum of 30 days from implementation. Use of the Software is entirely at the User’s own risk and neither ABC nor its distributors warrant that the Software will meet the User’s individual requirements nor that the operation of the Software will be entirely uninterrupted or error free.

3. The User acknowledges that the purpose of the rights granted hereunder is strictly to enable the User and those using the Software on its behalf (who must be either employees or individuals working under contract) to legitimately monitor and control the internet access and computer activity of, in the case of schools, school children or college students attending the User’s institution as well as members of staff and, in the case of corporate Users, legitimately monitoring and controlling internet access and computer activity of the User’s IT systems. In doing so, the User must ensure that it complies fully with any applicable privacy, confidentiality, data protection, human rights, computer misuse or other applicable legislation whatsoever. The User must, where required by applicable local law, ensure that those being monitored (and, where applicable, their parents) are given suitable warnings in advance of monitoring commencing and give express consent to the extent that is required. The User agrees to indemnify ABC, its employees, officers, distributors and agents from any and all liability (and related legal costs) arising from any breach of privacy and other applicable legislation resulting from the User’s use of the Software. ABC has and will continue to use all reasonable endeavours to ensure that the Software contains no viruses or other malicious code which is designed to corrupt or otherwise adversely affect the performance of computer systems. However, it is the User’s responsibility in accordance with good computing practice that it undertakes its own virus checking precautions before implementing the Software and all new versions thereof.

The User’s use of the Software and the results obtained therefrom is entirely at the User’s own risk. This is a reflection of the fact that the User has been given an adequate opportunity to fully evaluate the Software before proceeding to acquire a licence beyond the evaluation period and the price paid for the Software. Importantly, there are numerous factors almost entirely outside the control of ABC, including unique and changing aspects of the User’s IT systems and infrastructure and the future actions of third party providers of software and hardware such as firewalls, virus protection software, drivers and operating system updates, which may impact upon the performance of the Software at any point in time.

No warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, durability or fitness for purpose of the Software is given or assumed and all such warranties, conditions, undertakings and terms are hereby excluded. Depending upon the country in which the User is located and whether the User is acquiring the Licence for business or personal use, the exclusion of certain implied terms and the limitation of liability set out below may not be lawful in which event the User’s statutory implied rights are not affected. ABC shall be given a reasonable opportunity to remedy any claimed unsatisfactory performance of the Software. The User shall reasonably demonstrate the alleged unsatisfactory performance to ABC or its distributor and reasonably cooperate with ABC in recreating the problem.

4. Except as expressly provided the User is not permitted to copy, transfer, modify, translate, disassemble, reverse engineer or decompile the Software as supplied for any purpose whatsoever.

4.1 Where permitted by applicable law, the User may incidentally decompile the Software only if it is essential to do so in order to achieve interoperability of the Software with third party software or hardware ("Permitted Purpose") provided the information obtained by the User during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party without ABC’s prior written consent and is not used to create any software which is substantially similar to the expression of the Software nor used in any manner which would be restricted by copyright.

4.2 Notwithstanding Clause 4.1, the User undertakes to first consult ABC regarding any information the User requires in order to achieve interoperability so that ABC may consider making the same available to the User (without the User having to rely on Clause 4.1) subject to the restrictions on disclosure set out in Clause 4.1.

5. For the avoidance of doubt except as expressly set out ABC shall have no liability to maintain, enhance or otherwise support the Software.

6. The User shall remain fully responsible for implementing appropriate security measures in accordance with best computing practice such as the use of passwords, firewalls, up to date, reputable virus scanning software and regular data back-ups to safeguard itself and those who use its computer systems from accessing inappropriate material, malicious code or other undesirable elements.

7. Under no circumstances shall ABC or any of its distributors be liable for any loss or damage (even if reasonably foreseeable) arising out of use of the Software, inability to use the Software or any defect in the Software however caused. Except for death or personal injury caused by ABC’s (or its distributor’s) negligence (to the extent that liability for the same cannot by law be excluded or restricted) all risk associated with use of the Software and the results derived therefrom remains with the User.

8. The Licence granted hereby is personal to the User. The User may not assign, sub-licence or otherwise transfer all or any of its rights and obligations hereunder to any third party whatsoever without the prior written consent of ABC. The Software is to be used strictly for the User’s own use. The Software is not to be used to provide any kind of monitoring service to or on behalf of a third party, whether for payment or otherwise. The Software is the proprietary and confidential property of ABC. The Customer shall not delete proprietary information or trade mark notices, if any, appearing within the Software or on any related documentation. The User shall, and shall procure that its employees also, preserve the confidentiality of the Software and any ‘unlock codes’ and ‘account serial numbers’ and in particular shall only authorise access to the Software or disclose confidential information relating to the Software to the extent that such access or disclosure is strictly necessary in accordance with the rights granted hereunder and then only to the User’s employees.

8.1 Obligations of confidentiality shall not apply in respect of

8.1.1 information which is within the public domain unless the information is in the public domain as a result of a breach of this Agreement by that party; or

8.1.2 any information or knowledge possessed by that party prior to disclosure to it by the other or rightfully acquired from sources other than the other party as evidenced by the written records of such party; or

8.1.3 any information or knowledge that is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality; or

8.1.4 is required by law to be disclosed by the receiving party, provided that the receiving party: gives the disclosing party prompt written notice of such requirement prior to such disclosure; provides assistance in obtaining an order protecting such information from disclosure; and discloses confidential information only to the extent required by law

9. ABC and its distributor, if applicable, warrants that it has the right to grant to the User the rights in the Software as set out herein. ABC shall defend any claim by a third party against the User that the Software infringes any intellectual property rights and shall indemnify the User against all costs and damages awarded against the User as a result of any such claim provided that:

9.1 The User shall promptly notify ABC in writing of such claims;

9.2 ABC shall have exclusive control over the defence of such claims and over all negotiations in relation to such claims and in particular the User shall not accept any liability in relation to such claims without the prior written consent of ABC;

9.3 The User shall provide all such documents, information and assistance and do all such acts and things as ABC may reasonably require to assist it in relation to such claims; and

9.4 In the event of any such claim, ABC shall have the right to procure for the User the right to continue using the Software or to replace or modify the same so that it becomes non-infringing or, if in the opinion of ABC no other reasonable alternative is available, to terminate the Licence and to refund the Licence fees paid in the preceding 12 months.

ABC has no liability for any claim to the extent that it is based upon the combination, operation or use of the Software with third party equipment, devices or software. ABC has no liability for any claim based upon alteration or modification of the Software supplied hereunder. The foregoing states the entire obligation of ABC and its distributors with respect to intellectual property infringement.

10. The User shall during the continuance of the Licence:

10.1 Effect and maintain reasonable security measures to safeguard the Software, ABC’s online licence management system and any ‘unlock’ codes or ‘account serial numbers’ from access or use by any unauthorised person;

10.2 Retain the Software and all copies thereof under the User's effective control;

10.3 Maintain a full and accurate record of the User's copying and usage of the Software and shall produce such record to ABC on request from time to time;

10.4 Not knowingly, either directly or indirectly, allow or facilitate the use of the Software in countries where such use would be in breach of UK or US governmental export or usage regulations.

11. The User will supply to ABC and ABC will during the course of this Agreement obtain through use of ABC’s online licence management system certain personal data relating to the User and persons using the Software on its behalf. This data will be used by ABC strictly to enable ABC to administer and regulate the licensing of the Software and to facilitate the provision of technical support. The personal data will also be used to keep individuals informed of developments in ABC’s products and services from time to time. Any individual can elect not to receive further information regarding ABC’s products and services by notifying ABC to that effect using the contact details listed for that purpose on ABC’s web site. ABC undertakes that any personal data will not be disclosed to any third party except to any sub-contractor acting on behalf of ABC from time to time and then only as strictly necessary or to any purchaser of ABC’s business and assets.

12. This Licence shall automatically terminate forthwith if the User (or any person using the Software on its behalf) fails to comply with the terms and conditions set out herein. ABC may, but is not obliged to, confirm termination of this Agreement by giving notice in writing to the User following the same coming to ABC’s attention if the User (or any person using the Software on its behalf) has failed to comply with the terms and conditions of this Agreement. ABC or its agents reserve the right, subject to giving reasonable advance notice, to audit the User’s computer facilities by way of physical on-site inspection to determine whether the terms of this Licence have been complied with. The Software automatically attempts to send a record to ABC’s online licence management system each time the Software is activated. The User must not do anything to prevent such automatic reporting. This is a condition of the User’s use of its ‘account serial number’ facility. The Software contains technical measures which in some cases disable the Software automatically or in other cases enable ABC to disable the Software if the licence terms set out in this Agreement are not complied with or if any of ABC’s ‘unlock codes’ or ‘account serial numbers’ are misused or become compromised. Upon termination the User shall forthwith permanently destroy or erase all copies of the Software then in its possession or control and, if required by ABC, certify that this has been done. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it effect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come onto or continue in force on or after such termination.

13. The User shall notify ABC immediately if the User becomes aware of any unauthorised use of the whole or any part of the Software by any person and shall take such action as ABC shall reasonably require to bring such unauthorised use to an end.

14. ABC may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the User including any assignment within the ABC group of companies from time to time or to a purchaser of all or substantially all of ABC’s assets.

15. No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach. Any waiver must be clear and unequivocal on behalf of the party issuing the same. No right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.

16. This Licence shall constitute the entire agreement between the parties with respect to the Software and shall supersede any and all promises representations or other statements whether written or oral made by or on behalf of one party to the other of any nature whatsoever or contained in any brochure or document given by one party to the other. Nothing in this Agreement shall exclude liability for misrepresentations made fraudulently. No addition to or modification of any provision of this Agreement shall be binding upon ABC unless made by a written instrument signed by a duly authorised representative of ABC (which for this purpose, may include an e-mail provided that it is clearly stated to add to or modify the provisions of this Agreement).

17. No term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 or other similar legislation by any person who is not a party to this Agreement except that ABC’s distributors from time to time are entitled to rely upon provisions of this Agreement to the extent applicable including, in particular, to enforce the User’s obligation to pay the applicable licence fee and rely upon the provisions limiting warranties and liability.

18. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held in a final decision to be unenforceable illegal or otherwise invalid in any respect such unenforceability illegality or invalidity shall not affect any other provisions of this Agreement which shall continue in full force and effect and this Agreement shall then be construed with such amendments as are necessary in order to make the provision valid and enforceable and to meet, so far as possible, the original intention of the parties as reflected in this Agreement.

19. This Agreement shall be governed by and construed in accordance with the laws of England. In the event of any dispute arising between the parties under or in connection with this agreement the parties shall submit to the exclusive jurisdiction of the English courts. ABC shall be entitled to revise the terms and conditions of this Licence upon a minimum of 90 days notice. Any such notice will be posted on ABC’s web site. Use of the Software after the date when this notice becomes effective will be deemed to be confirmation by the User that it accepts the applicability of the revised terms and conditions.